How Does Having Children Impact Divorce Financial Remedies Proceedings?

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Children are the Court’s first consideration when a couple divorces.  When there are no children the principles are less established.  This article looks at how children can impact financial remedies proceedings in divorce.

When a couple divorces, they must decide how to divide their financial assets. If they are not able to agree this division between themselves, Family Court input may be required. In this event, specialist legal advice is essential. Once financial proceedings have begun, the parties will still be encouraged to negotiate a settlement. If a settlement can be agreed then time and cost lost to litigation can be minimised. However, negotiations will be guided by the decision which the Family Court would be likely to make at a final hearing.

Family Court decisions regarding financial remedies are led by the overarching principle of fairness. Where assets are modest, the Court will focus on meeting the parties’ needs. Where there are more substantial assets, the Court will consider how the assets can be shared fairly between the parties.

Children are the Court’s first consideration

The law is clear that where there are one or more children of the marriage, they must be the Court’s first consideration. Deciding how to apply this principle can be very challenging. Income and capital sufficient to run one household during the marriage may well be insufficient to run two households following divorce. This is all the more likely where assets must stretch to cover costs associated with children. In any event, there is likely to be a sacrifice in standard of living for both parties. While any children will be shielded from this sacrifice as far as possible within the parameters of fairness, they are also likely to see change in their quality of life. The outcome of each individual case will depend on the nature of the assets involved and the specific personal circumstances of the parties. As a result, it is crucial to seek advice from a specialist lawyer.

Childless marriages and financial remedies proceedings

The principles in respect of marriages where there are no children have been less firmly established. However, ‘short, childless marriages’ have, until recently, represented a paradigm example in which unequal sharing may be appropriate (Sharp v Sharp [2017] EWCA Civ 408). This principle would apply particularly to assets which are not ‘matrimonial’. Matrimonial assets, in summary, result from the parties’ joint efforts. It would also be more likely to apply where parties are both in employment and have chosen to maintain separate financial affairs to some extent.

However, a recent case (E v L [2021] EWFC 60 (Fam)) has significantly changed the position. Mr Justice Mostyn held that the absence of children should not be determinative. His reasoning primarily relied on the principle that it is not usually appropriate to intrude into the personal details of the relationship, save where it is relevant to the parties’ finances. When applying the sharing principle “for the court to start asking why there are no children, and whether this denotes a lesser extent of commitment to the relationship, is to make windows into people’s souls, and should be avoided at all costs” [29]. As a result, childlessness “should be banished from any consideration of whether there should be a departure from the application of the sharing principle” [34].

If you think these issues may apply to your case, you are recommended to seek specialist legal advice.

Here to Help

If you need advice about divorce and financial remedies proceedings , please get in touch with Tracey Dargan, Partner and Head of Family and Divorce.

This article is for information only and should not be relied upon as legal advice. If you need legal advice on the issues raised in this article or any other family law issue, please contact a member of our team.