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We are separating amicably and have both worked full-time on similar salaries throughout. I put in a considerable deposit to the house (1/3) and have since put in significantly more to improvements. If we agree to allow for this, will a judge automatically perceive this as unfair?
Replies (1)
Good morning - the answer to your question is...it depends!
The law does not have a defined formula for dividing assets or what is considered fair. The starting point when sorting finances is a 50/50 split. But if one of you has a greater need, for example, you are housing the children or earn a lot less, then the split may differ. These are the sorts of things that the courts consider when making their decision:
The court’s primary concern is the welfare of your children The court will want to ensure they have a stable roof over their head(s) as far as is possible. Some examples of what a judge takes into consideration when deciding whether your consent order is fair are: Where your children will live/who your children will live with, their age and mental and physical health, and their educational costs.
The next big thing the court looks at is need A judge may consider whether one of you has a greater need than the other and therefore should get more than half the assets. This could include whether one of you needs ongoing support, called spousal maintenance. This can mean a departure from an even, 50/50 split.
The law also considers income and earning capacity For example, if one of you has stayed at home to raise children, your earning capacity may be reduced, and you may need a greater share of the assets to house yourself or live off. Or if one of you has lost their job the court may consider how likely it is that you will find another job at a similar salary level
Property and other assets that either person has now or may have in the foreseeable future The judge will consider whether you have split property and assets in a fair way. This includes assets that are held in sole names (and/or were purchased prior to the marriage) if needs dictate, they should be in the mix as well as those held jointly.
Age and health Pensions become more important the nearer retirement age you are. Age and long-term health issues may affect your earning capacity and housing needs. A judge will consider whether you have made a fair provision for both of you in retirement and whether splitting pensions equally is fair if you are of different ages.
Length of marriage / civil partnership In shorter marriages ‘fair’ is more likely to mean taking out what you put in… i.e. what you brought to the marriage. Most people agree a marriage of less than 2 years, is likely to lead to this kind of settlement. If you have children however, the needs of the children will always be prioritized over the length of marriage.
Contributions made The law considers financial contributions as equal to those of homemaking (time spent looking after the family). Marriage is a partnership of equals and the law seeks to distribute assets in a way that recognizes this. So, a smaller financial contribution doesn't necessarily mean less of the assets.
You can make any agreement you like between yourselves but if you want the court to seal a consent order and make it legally binding then a judge will have the final say on whether your agreement is fair in the eyes of the law. amicable's divorce coaches are specially trained to help you make a fair agreement. Please feel free to book in for a free 15-minute advice call [here]https://amicable.io/book-divorce-advice-call/).