29.10.2018
The law that governs financial settlements on divorce is a law of discretion. There are no rules which state how the assets should be divided, if spousal maintenance should be paid and if so how much should be paid and for how long. The law does however contain guidelines regarding what a judge should consider when deciding what an appropriate financial settlement is. These guidelines are contained in section 25 Matrimonial Causes Act 1973. These are often referred to as the section 25 factors.
All these factors are equally important. However, once they have been considered, the judge must also consider the couples’ needs and those of their children. But "need" is an elastic concept - at a basic level, need is having somewhere to live, and money to live on. The section 25 factors will govern how the judge interprets need in each case.
While it would be great if a solicitor could tell their client precisely the financial settlement they will get if they divorce, the number of factors that a judge has to take into account, and the discretion that they have when doing this, means this is not possible. An experienced family lawyer will, however, be able to tell you the likely settlement, and give you a range of outcomes.
As a result of this law, if you put the same set of facts before several different judges, each of them may order a different settlement, although the outcomes should be within a range and not differ dramatically. This is why many spouses prefer to negotiate a financial settlement, giving them certainty, rather than have a judge decide their fate, the outcome of which is unpredictable.
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