How do I know what split I will receive?
Half the angst of ending a relationship is determining who gets what in the split. Dividing up a life together is messy and controversial. The ultimate question people want answered however is, what percentage am I getting overall and how do I get more?
The following article provides an overview as to how this split is determined.
The process the court will take
In determining what to award, two approaches can be taken:
1. Global Approach
This approach results in each party being given an overall proportion of the total asset pool.
2. Asset by Asset Approach
This approach involves dividing up the assets individually.
Both approaches are legitimate and there is no binding rule regarding the discretion to choose which approach. This is one example of the benefits provided by negotiation. The parties can choose which approach they would rather take or take a combination of the two.
The Global Approach however is the more common choice. The asset by asset approach typically only used for small asset pools and/or where the assets have been kept largely separate throughout the course of the relationship. Accordingly, the longer the relationship and the more mixing of resources, the less likely it will be that an asset by asset approach will be an effective solution.
It is under this approach that the question of percentage becomes relevant. In determining this, the court will consider the following:
1. Initial contributions
The court will look at the assets that each party brought into the relationship and the impact this had on their property pool or life together.
It is important to note that not all of these headings will apply and even where they do, they will vary considerably in how much they influence the final outcome.
Even contributions of significant weight and impact may not affect the overall division over much. The impact of the contribution may be deemed to have been eroded over time depending on a number of factors. Such factors will include how the parties used and treated the asset over the course of the relationship and whether the other party made later contributions such that the impact of the initial contribution is offset.
Conversely, where the relationship was of a short duration and there were significant initial contributions, these are likely to hold substantial weight in the division of assets.
2. Contributions during the relationship
This heading simply refers to how a relationship was financed day to day. Where did the parties’ income come from? Who paid for the expenses, the mortgage or the parrot an to what extent did the influence the way the parties lived.
The obvious example is where one party has acted as the main financial breadwinner and worked full time throughout the relationship.
Note however that financial contributions are just one type of contribution and the time the other party has spent at home looking after the children and creating a home carries its own weight.
3. Post separation contributions
This area is more grey than the other headings as, from separation, parties consider themselves to be leading separate lives and are surprised by the influence of events subsequent to a separation on the overall outcome of a property split.
However, this is a necessary consideration as, left unconsidered; one party would often have born more of a financial burden without this being reflected in the split. An example is the continued payment of a mortgage subsequent to the split. The party who lives in the former matrimonial home may not necessarily still be the one paying the mortgage.
Similarly, if one party erodes the asset pool after separation, they should not be entitled to an equal split of what remains where they have reaped the benefits of the disposal.
4. What split is just and equitable
A court will not allow the division of property where it deems such a division to be unjust. This applies even to consent orders where.
For example, a party who remains the primary carer for the children after a relationship of 15 years is unlikely to find themselves with a 90-10 split against them due to the contributions they have made and the future needs that need to be seen to.
5. Negative contributions
Often considered, but still not very common, are negative contributions. Such contributions can be included and will count against the other party. They will be examined to determine whether they are in fact negative contributions and then whether they are of significant enough value to affect the overall proportion one party receives.
An example is where one party has spent a considerable amount of money on gambling. Should the court decide that the amount spent was so excessive as to be a negative contribution, it will lower the entitlement of the party who gambled. Having said this, courts are reluctant to find gambling as a negative contribution and it is more commonly just considered as part of how the couple conducted their relationship.
6. Non-financial contributions
This category refers to contributions such as that of homemaker or renovations personally completed. They are more difficult to quantify but are no less relevant to how the parties conducted their relationship and
7. Future Needs
This factor considers how the parties will support themselves effectively. What is their health like? Will they be the primary carer of the children? Do either of the children have special needs? Have their skills in the workplace been eroded over the course of the relationship?
There is no easy way to determine what percentage split you will receive. Not only will it depend on these factors, but also the parties willingness to negotiate, compromise or avoid a drawn out court process. However, these factors will provide a guide and should at least allow a party to determine broadly where they are likely to fall. Our skilled solicitors can assess your matter and provide you with an indication based on your own personal circumstances of what you should receive in a property settlement.