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Who Decides What Is Reasonable In A Divorce?

The law concerning the division of divorce assets is very difficult. The Court has very broad discretion to decide who gets what for one of the principal reasons. The divorce rules are governed by the laws of Guernsey and England and by previous cases in both jurisdictions.

The law is very general because it merely lists what the Court can take into consideration. This list comes from the Matrimonial Causes Act 1973, Section 25. This law was imported by custom into Guernsey divorce law. This is English law.

The decisions taken both in Guernsey and England in previous cases can occasionally show how the courts applied the factors of Section 25. All cases are really different, however, and previous cases normally only provide general guidance.

The truth is that the rules for deciding who is divorced are very few, difficult and quick. It follows that, in order to make whatever order it considers fair on the particular facts of each case, the Court retains a high level of flexibility.

The disadvantage of such a flexible approach is that it can occasionally lead to uncertainty in predicting the outcome of a case. The law cannot be both flexible and adaptable while also being rigid and clear cut. These elements are obviously antagonistic to one another.

The main divisional rules can be summed up as follows:

  • Fairly separate the assets

Fairness doesn’t necessarily mean an equal division. What this means is that the parties should be left to the same standing and the respective roles of bread-growers and homemakers must not be discriminated against in the same way.

  • The needs of dependent children should always be taken into account first

In practice, this usually means that the children and the parent in custody must be accommodated. In some cases, the parent in custody must keep the marriage home. The Court will always look to accommodate both parties ideally if the assets available allow.

  • The assets are divided equally as a starting point

The Court is required to consider all of the circumstances of the case, including the Section 25 factors and then apply these to the facts of the specific case. After taking into account the Section 25 factors, the Court may order an unequal distribution of the assets. Unless there is a compelling reason to the contrary, assets should be divided equally.

  • The Court will always look first and foremost to meet the needs of each party

If these needs can be met with the available assets and there is a surplus, the Court may consider dividing the remaining assets based on their origin. This necessitates the division of assets into matrimonial and non-matrimonial property. Matrimonial property includes assets acquired during the marriage through the joint efforts of both parties.

The Court will seek to achieve a financial separation between the parties whenever possible. This is known as a clean break. This means that there will be no ongoing financial ties between the parties, with the exception of child maintenance, if applicable. If a clean break cannot be achieved right away, the Court has the authority to order spousal maintenance for a set period of time in order to achieve a clean break in the future.

  • The Court will seek to achieve a financial separation between the parties whenever possible

 This is known as a clean break. This means that there will be no ongoing financial ties between the parties, with the exception of child maintenance, if applicable. If a clean break cannot be achieved right away, the Court has the authority to order spousal maintenance for a set period of time in order to achieve a clean break in the future.

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