We are often asked in family mediation sessions what an individual is entitled to in terms of the financial settlement, but there is no easy answer to that question.
When dealing with financial issues concerning children, it is much more straightforward. The Child Maintenance Service has an on-line calculator which asks a number of questions and then produces a figure which is, in essence, the paying parent’s financial responsibility to his or her children. No such calculator exists for deciding how the assets of the marriage are to be divided, mainly because every case is different and it would be near impossible to come up with something that would produce sensible results and yet be simple enough for any of us to use.
The law helps a little by providing a list of factors that are taken into account. These are listed in Section 25 of the Matrimonial Causes Act 1973. To the guidance laid down by Parliament in that Act, the Courts have given some clarity in various decisions over the intervening 40 years.
Whilst in family mediation we are not there to guess what the Court may decide, it is useful to know the factors which the Judge will have in mind when reaching a decision. This will allow the participants in a family mediation to make proposals to the Judge which are within the guidance set.
Factors taken into account
1. First and foremost, the Court will look to the welfare of any children under the age of 18. Any proposed settlement which is given to the Court which fails to ensure the welfare of the children of the marriage will almost certainly be thrown out, and during a family mediation session the mediator will work with the parents to ensure that this aspect is covered thoroughly.
2. After the welfare of any children has been assured, the Court will try to determine the financial needs of the parties, and make an order that meets those needs, thus ensuing that both are housed, fed and clothed and that their other basic needs are provided for. It will also take into account the financial obligations and responsibilities of the parties, both now and for the foreseeable future. This in family mediation it is important that the participants work with the mediator to establish what those needs look like, and how they may be met.
3. Each of the parties’ income, earning potential, property assets and other financial assets will also be factored in by the Judge, and so in family mediation we must take full account of all of these factors.
4. The standard of living of the family prior to the end of the relationship will also be considered, although the Courts recognise that running two families is more expensive than running one, and so it is almost inevitable that each party’s standard of living will fall a little after the divorce as the same amount of money is called upon to support two households.
5. The age of the couple and the length of their marriage are also important factors. Essentially, the longer the marriage, the greater the degree of interdependence and the more difficult it may be to arrive at what is usually called a ‘clean break’ divorce. Nevertheless, a clean break is what we work together to achieve, but recognising that it may not always be possible or sensible. Every case is different, and we work together in family mediation to explore and understand the unique factors of each.
6. Any special requirements or physical or mental disabilities are also taken into consideration, especially as they affect earning potential or living expenses. Clearly an individual who, because of some disability or other, has additional needs over and above the needs of someone who does not share that disability must still have those additional needs met.
7. The contributions that each party has made to the marriage or is likely to make to the family in the future is very relevant. In this regard, the law looks upon the contribution of a parent who stayed at home to look after the children as every bit as significant and important as that of the parent who went out to work; ‘I earned more, therefore I should get to keep more’ is unlikely to win favour with any court. In the same way, the fact that one parent may have his or her ability to earn in the future due to childcare commitments will be taken into account by the Court, and thus must be considered in family mediation.
8. The value to either party of something that they will lose as a result of the end of the marriage is also a factor. In essence, this is talking about pensions and death benefits arising from pension funds. A couple who were married for a long time could have expected a long retirement together living on the pensions which may all have been accrued under one name. Should the named party die, the surviving parter could expect to received survivors’ benefits from the pension. The Court will order that steps are taken to make sure that each person’s needs are addressed and so neither is left destitute in the future.
9. The final factor is the behaviour of the parties, but this is not as straightforward as it may appear. While unreasonable behaviour or adultery may be very important factors in demonstrating to the Court that the marriage has irretrievably broken down, it does not follow that that they will have any bearing on the settlement. This surprises many people, who may feel that the other party should have to ‘pay’ for their actions. In order to be relevant to the matter of the settlement, one of the parties will have had to commit murder or some other extremely grave criminal offence which, on conviction, would result in a very long prison sentence. Other behaviour may have contributed to or even caused the breakup, but the Court does not weigh them in the balance when deciding on the appropriate settlement.
The desired outcome in Family Mediation
The desired outcome in family mediation will be the same as that desired by the Court – to achieve fairness. That will be done by discussing the various factors outlined above, and then, as the courts do, work out the best and most sensible solution, dependent on the particular circumstances of each case.
