News and Insights
28 September 2016
What you need to consider
Viberts recently successfully acted for a wife during divorce proceedings involving the division of assets. It was a complex and unusual scenario with a focus on the matrimonial home.
A number of different factors were at play.
- It was the second marriage for both the husband and the wife. Both are in their sixties and the marriage had lasted for around 7 years.
- The main asset at issue was the matrimonial home, which was in the sole name of the husband. Although the husband and wife had lived there during their marriage, it had been funded entirely from proceeds of the sale of the property where he had lived with his first wife until she died. This meant that all the assets in dispute when the matter came before the court were not only in the sole name of the husband but the source of the wealth was all his.
- The lawyer for the husband sought to ring-fence the house from the matrimonial pot. He made an offer to settle that went nowhere towards meeting the wife’s reasonable needs for housing.
The court held that:
- Both the husband and wife needed a roof over their head.
- This was not a big money case and therefore fairness begins and ends by considering the needs of the husband and the wife.
- The order made by the court did not have to produce equality but it had to be fair to both.
- The matrimonial home was the central item of the matrimonial pot and should not therefore be ring-fenced.
The court awarded the wife an amount sufficient for her to buy a suitable property, mortgage-free. The husband was left with slightly more of the matrimonial pot but again sufficient to meet his needs.
Couples embarking on a second marriage later in life can learn some clear lessons from this case:
- The husband should have considered a pre-nuptial agreement. If the wife had signed this having had the benefit of independent legal advice, it almost certainly would have had an impact in this and similar cases.
- It is almost impossible for a husband or a wife to argue that the matrimonial home does not form part of the matrimonial pot, even if it is purchased in the sole name of one of the parties to the marriage.
- The legal costs and stress in this case were made much higher due to the husband’s refusal to mediate or arbitrate on the issues. This was noted by the court which urged all divorcing spouses to consider alternative dispute resolution rather than proceeding to a final hearing before the court.
Things to consider
If you are thinking about getting re-married, you may wish to consider safeguarding your own assets through a pre-nuptial agreement. This precautionary and practical measure can significantly simplify the division of assets should the unfortunate need to divorce arise. This is even more advisable if there are children from either side.
Viberts’ family team are experts in matrimonial matters including divorce, pre-nuptials and post-nuptials.