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The legal background


It is easy, with hindsight, for a spouse who entered a marriage with significant business or other assets to think that he or she should have entered into a pre-nuptial agreement which, whilst not legally binding in the UK, would be likely to be taken into account by a Court.

In practice, very few parties enter a marriage with a pre-nuptial agreement and therefore, rather than protecting the pre-marital assets, the ‘spoils’ are left to be divided by agreement or, if that cannot be reached amicably, by the Courts under a somewhat uncertain and unpredictable system that has evolved over many years.

One of the cornerstones upon which current decisions are made is the case of White-v-White in 2001 which laid down the principle that a family’s assets should be shared on a basis which reflects the contributions of the parties. It is key in assessing contributions that the contribution of the homemaker will be seen as no less valuable than that of the breadwinner. For most cases, therefore, whatever was brought into a marriage by either spouse or whatever view each may have of their relative contributions during marriage, the starting point is around 50:50.

Whilst there are general principles and precedents which may help, the current system is based on an individual Judge’s view of what is fair and is therefore quite uncertain. The system is currently being reviewed by The Law Commission with a view to the possible introduction of a ‘cookie cluster’ sharing plan which would be based upon a more certain structure taking into account, for example, the length of the marriage, the number of children and the earning capacity of the parties.

This would be a lot more like the system in Scotland under which, for example, spousal maintenance is paid for just three years. At the moment, however, the system is far more woolly and uncertain and in no area is the uncertainty and difficulty greater than the valuation of business interests.

If you would like to discuss your own circumstances or arrange a free initial meeting to get a grasp on where you might stand, please call Malcolm Coomber or email mec@clarksonhyde.com