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What is a Fair Settlement?

A different question often asked is, "what am I entitled to?"

We are normally talking about the division of any assets, including, savings, pensions, properties etc and child and or spousal maintenance.

Child Maintenance

An idea of Child maintenance can be calculated using the Child Maintenance Calculator (CMS) . A large income may entitle the other party to a CMS "top up".

Capital Division

If a judge is called upon to consider finances they are required, by S25 Matrimonial Causes Act 1973 (MCA), to consider all the circumstances of the case, with first consideration being given to the welfare of any children. They are also required to consider a checklist of factors, set out in s25 (2) of the MCA which includes matters such as the length of the marriage, standard of living and contribution of the parties, earning capacity, disabilities, needs, obligations, responsibilities etc. The list isn't exhaustive and no one factor has greater weight.

Principles and guidance on applying the statutory criteria can be found in Case Law. There have been a number of cases from 2000 onwards that have proved groundbreaking in this respect. L v L (2008) reviewed some of these and the court provided a suggested starting point as follows:-

"First, I must determine what are the assets and general financial position of the parties. Secondly, I must decide how all the property of the parties should be shared between them. That property should be shared equally between them unless there is good reason to the contrary. Thirdly, I must decide whether the result produced by the application of the sharing principle meets the needs of the parties."

There may be a number of reasons for departing from equality including pre-marital or post separation assets, inheritance, needs etc. Needs will normally trump equal sharing.

In Robson and Robson (2010) it was said that the objective is to achieve a "just result". Justice is attained when the result is fair for both parties. Parties may of course feel that a court imposed decision isn't their idea of fair.

The important point to remember is that the court has a wide discretion in achieving fairness and different judges, like everyone else, will have their own idea of what that is. However, the guidance provided, limits that to an extent and parties can often be advised on likely outcomes. Local knowledge of judges can be an advantage. It is important therefore for parties to try and reach an agreement that they are content with, than risk having someone else's judgement imposed on them.

Case law tells us that although judicial guidance is important, it needs to be adapted to the unique circumstances of every case and ultimately any decision should be informed by the s25 criteria.

Maintenance

In addition to Child Maintenance or separately (if not applicable) there may be a claim for maintenance i.e usually payment of part of one party's income to the other.

The s25 MCA criteria mentioned above, is again relevant. Of particular relevance are each party's income needs, ability to pay, overall financial resources and the standard of living enjoyed by the parties enjoyed during the marriage.

Judicial Guidance and in particular the recent case of B v S (2012) suggests that in most cases and unless there are issues of compensation, needs should determine maintenance.

Again, it is a matter of discretion and fairness is important. It is about striking the right balance

If each party is able to maintain their own income needs then maintenance may be irrelevant. Further, a short marriage may result in maintenance being paid for a very short period of time to allow the parties to adjust to independent living or it may not be relevant at all. A longer marriage may result in needs being provided for a much longer period of time, possibly for life, but "a clean break is to be encouraged wherever possible", Sir Mark Potter P -VB v JP 2008.

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