Words: Claire Davies, Principal of Claire Davies, Advocate
Since 2000, the courts of both England and Jersey have recognised the principle of equality when resolving financial applications on divorce. In some cases, we achieve equality by dividing assets down the middle.
In others, one party will need either a bit more of the assets or some additional income for a period of time. In essence the court will look at the available resources and do their best to find a solution that meets the reasonable needs of both parties – particularly their need for housing. In simple terms, most cases begin and end with those needs, rather than wants.
In cases where there is more than enough to go around, wealth will generally be shared equally. Sometimes a divorcing couple will have entered into a nuptial agreement, which may (or may not) alter the outcome. Very occasionally, particularly where a marriage has been short, the court will ring-fence an asset or some funds because they were generated outside the marriage. However, as a general rule, all assets are in the pot – wherever they come from. In 2024, it still comes as a nasty surprise to many spouses that their businesses, pensions and share options are matrimonial assets that will be taken into account on divorce.
For higher earners, the law can feel particularly unfair. They will not get special credit for their efforts in the office or the boardroom. Arguments of special contribution, as it is known, are now limited to truly exceptional cases, described by one English Judge as “white leopards”. The moral of this story? Consider whether a nuptial agreement will help you to feel more secure in your position. There are couples who both feel that the current legal position is less than fair. Otherwise, understand that when courts speak of equality – they mean it.
