How Much Is My Fair Share?

Following the House of Lords’ decisions in Miller/McFarlane in 2006, the Courts in 2007 provided further guidance in cases where the assets clearly exceed the needs of the couple.

In Charman, the Court of Appeal made clear that it is permissible to take equality of division as a starting point and then to consider whether there are any grounds for departure. Thus the “principle of sharing” has evolved, and it applies to all property but where the property is “non matrimonial”, there is likely to be better reason for departure from equality. In a short marriage, “non-matrimonial” property might include the fruits of a business where only one spouse has worked. It might perhaps also include assets kept deliberately separate where both spouses have pursued their careers during the marriage. A pre-nuptial agreement could make that clear.

In L v L, the High Court set out the court’s current approach to the criteria for settlement.

First the assets and general financial position of the couple must be determined
Then, the court has to decide how all property of the couple should be shared between them, sharing equally unless there are good reasons to the contrary.
Finally, the Court has to decide whether the result produced by the application of the sharing principle meets the needs of the couple, generously interpreted.

Only if the result of the application of the sharing principle fails to meet the needs of the couple do those needs dictate a greater share of the property than that produced by the application of the sharing principle. There is no reduction of the award because needs are less than the sum produced by the application of the sharing principle.

One reason to depart from equality may be where there has been a “special contribution” to the welfare of the family as distinct from simply to the value of the assets. This might often be defined by the accrual of wealth, but more often the manner of that accrual will be the key. Such contributions are not defined in cash terms, but Charman suggests that where such contributions have taken place, it is still only likely to result in the contributor retaining between 55% and 67% of the assets.