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England and Wales – Capital and Maintenance on Divorce

There is no matrimonial property regime in England and Wales. On divorce, the parties have to make full disclosure of all their assets, wherever and however held. Section 25 of the Matrimonial Causes Act 1973 (as amended) lists “matters to which the court is to have regard in deciding how to exercise its powers” and first consideration is to be given to the welfare of the children of the family. The court has wide discretion to make whatever order is fair and possesses extensive powers to distribute all assets of the parties, including premarital assets, inherited assets, assets held in trust, offshore assets, business assets, pensions and bonuses. It can make orders for the payment of a lump sum, transfer of property, maintenance (known as periodical payments) for a spouse. These can be for a term or joint lives orders and children and orders for the variation of trusts classified as nuptial settlements.

 

In the case of Miller and McFarlane (2006) UKHL 24, the House of Lords identified three strands of fairness: needs (of the parties and the children), sharing (of assets) and compensation (of relationship generated disadvantages). In most cases, the assets do not exceed the needs, in which case needs will be the determining factor and the other strands of fairness will be irrelevant.

 

If you have any questions please contact Georgina Bradley (gb@sproullllp.co.uk) or Stuart Hutchison (sh@sproullllp.co.uk) on 01208 72328.