It is entirely understandable that people seek an answer to the question “what are my rights?” when entering a divorce process.
Rights in this context are about entitlement, and what that individual is entitled to.
So what are you entitled to when you divorce?
If I answer this question by focussing on financial entitlement, money is divided in accordance with the framework established by English and Welsh caselaw and statute. It is helpful to read through the factors, known as the section 25 factors, that the court will take into account when considering a case as listed at the end of this blog, but whilst that may assist with understanding the various influential elements, it will certainly not provide you with an answer to the question “what are my rights?”
There is no calculator on the internet which can provide an answer to that question: there are so many variable factors that a solicitor will only be able to provide a bracket of settlement, even after full financial disclosure of each party’s assets has taken place.
The Law Commission is due to publish a report in Autumn 2013 on the concept of needs in divorce and how non matrimonial property should be dealt with. They have set out in their paper the reason why this area of law is being examined: “The judge in the family court has been compared to a bus driver, who has been told how to drive the bus and told that he must drive it, but has not been told where to go, nor why he is to go there.”.
However, any change to the law to make outcomes more predictable, perhaps through the use of a more formulaic approach as is now applied in certain circumstances in Canada, will only come after further work is done by the Law Commission, to ensure that the “interests of children are not sacrificed to the convenience of adults”.
So whilst a person in a divorce process does not, currently, have the right or entitlement to clarity of outcome from the outset, they do have the option of either (a) accessing a court process which exists to assist individuals secure an outcome within a court set timetable, which enables that individual to know they will have a definitive outcome within a defined period as established by the court (particularly within the Milton Keynes fast track system) or (b) accessing many of the other dispute resolution options available to divorcing couples, whether using mediators, solicitors or an alternative setting to achieve resolution.
Individuals have an absolute right to feel safe during those financial negotiations. Certain options, such as mediation or collaborative law, may not be appropriate to use if there is a history of domestic abuse in the relationship. The divorcing individual may encounter many professionals within the process: judge, solicitors, barristers, CAFCASS, mediator, arbitrator, and these professionals are trained to screen for domestic abuse. This screening process should ensure that the right of the individual to negotiate matters in a safe environment is respected.
The “Section 25” factors:
a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire
(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
(c) the standard of living enjoyed by the family before the breakdown of the marriage
(d) the age of each party to the marriage and the duration of the marriage
(e) any physical or mental disability of either of the parties to the marriage
(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family
(g) the conduct of each of the parties, whatever the nature of the conduct and whether it occurred during the marriage or after the separation of the parties or (as the case may be) dissolution or annulment of the marriage, if that conduct is such that it would in the opinion of the court be inequitable to disregard it
(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
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