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.
By Azwatchdog – Own work, CC BY 2.5, https://commons.wikimedia.org/w/index.php?curid=5816262
Are You Looking for a Family Law Attorney You Can Trust?
The attorneys at GillespieShields are well-versed in a variety of different legal fields, ranging from family law to civil suits, employment disputes and probate cases. Although we specialize in several areas of practice, our greatest passion is family law. We believe in giving families peace of mind no matter their situation, and we fight hard to maintain that peace. Whether you’re filing for dissolution or divorce, determining custody of your children, or thinking about adopting children, our experienced attorneys are here to help you every step of the way. During our private, one-on-one consultation, we’ll take the necessary time to answer all of our questions surrounding Arizona’s family laws, your family’s unique situation, and the possible court outcomes. Contact us today for your consultation!
The materials available on this website are for informational and entertainment purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. You should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The information presented on this website may not reflect the most current legal developments. No action should be taken in reliance on the information contained on this website and we disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this site to the fullest extent permitted by law.