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What's Yours Is Not Mine?

on Thursday, 17 May 2018.

Due to the complexity of the process, it is often inevitable that divorcing couples have to seek advice from solicitors and sometimes end up in court when dividing resources.

'What's yours is mine' neatly outlines the legal starting point, that there should be equality between spouses and settlements should be 'fair'.  

This makes sense for assets accumulated during marriage, but what about those owned before the marriage? In the absence of a prior agreement, previously owned assets will be thrown in the matrimonial pot to be divided on divorce.

However, a recent case indicates that things may be changing, a move away from the 'sharing principle' that family lawyers have become accustomed to.  

Hart v Hart

At the start of the marriage, Mr Hart was 48 years old and a wealthy business owner. In the words of his wife, he was "a man of substance". Mrs Hart, an airhostess, was 27 when they married with no assets of her own except for a Porsche.

The couple were married for 23 years and had 2 children. In 2006 the marriage broke down, by which time their assets totalled £9.4 million.

What Does the Law Say?

The court has to consider a number of factors when dividing the assets. These include the sharing principle, fairness, the parties' needs, the ages of the parties and the length of the marriage. Contributions to the marriage are also considered, including finances, but also factors such as raising children.

The Court's Initial Decision

Mrs Hart argued that she made a full contribution to the marriage and therefore she deserved half of what her husband, Mr Hart, owned.

The judge, however, departed from the principle of equality and decided that Mrs Hart should not in fact receive half, concluding that "an equal division of the assets would be unfair". Of the £9.4 million accumulated, the judge decided that Mrs Hart would receive £3.4 million.

Mrs Hart appealed the decision on the basis that:

  • she had been responsible for raising the children and so had made a full contribution to the marriage
  • due to the length of the marriage (23 years) the pre-marital wealth should form part of the matrimonial pot

The Court of Appeal dismissed her appeal, agreeing with the initial decision that less than half was fair.

What Will This Mean if You Are Divorcing?

Predicting what each spouse will receive on divorce is very difficult as each case is decided on an individual basis.

Hart v Hart does not mean that the court is going to stop using the sharing principle, but it does show what is 'fair' does not necessarily mean half.

Family judges can use a very broad approach in deciding what goes into the matrimonial pot during a divorce. As a result, it is extremely important to obtain legal advice to make sure you are in the best possible place to achieve what you deserve and equally that you don't end up paying your former spouse too much . If you are in the hands of an experienced practitioner, sensible settlements can usually be achieved, avoiding both the expense and uncertainty of having to go to court.

Our family team are all members of Resolution, a body which promotes a non-confrontational approach to family problems.

If you need advice in this area, please contact Samantha Hickman, in our Family Law team, on 0117 314 5435.

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