Family Solicitors

Asset division during divorce or separation can be a complex and contentious matter, leaving many people uncertain about their next steps. Asset division is possible within marriage, through financial order applications, and in cohabitant separation, through claims under the Trusts of Land and Appointment of Trustees Act 1996.

Cohabitants following separation

Many cohabitants do not recognise that they can bring a claim in respect of a property under Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). TOLATA offers protection to cohabitees who either have purchased a property together, or reside in a property, which one of the parties purchased.

Claims under TOLATA can determine ownership of a property, and allows the court to decide who can remain residing in the property.

Married couples and the dangers of delaying financial consideration

It is less stressful to deal with the financial aspect of a marriage when issuing the divorce petition. Laypersons, who issue their own divorce petition, without seeking legal advice, may fail to consider the financial separation of their marriage. Whilst we advise financial separation is completed at the same time as the legal separation (divorce), in our experience most parties delay dealing with the finances. This is often due to a wish to let the bad feelings following the separation settle, or perhaps a failure to recognise that the parties should be financially separated from each other following their divorce. When considering issuing proceedings dealing with the matrimonial assets, parties must consider the reasons for the delay in bringing the proceedings. It is common, should a large amount of time pass, for the respondent to the proceedings to bring an application to strike out the application for a Financial Order. The cases of Wyatt v Vince (2015) and Briers v Briers (2017) are instructive hear. It is worth noting that courts will take into consideration the reason for the delays, which may reduce or completely eliminate any award made.

Wyatt v Vince (2015)

This case involved Kathleen Wyatt and her ex-husband Dale Vince, who founded the wind-power company Ecotricity. The couple divorced in 1992, but Wyatt made a financial claim against Vince many years later, in 2011, long after he had become successful and wealthy. The Supreme Court ruled in March 2015 that Wyatt could proceed with her financial claim against Vince, even though they had been divorced for nearly two decades. The court emphasised that there is no time limit for former spouses to apply for financial provision, but the delay in bringing a claim could reduce the likelihood of success or the amount awarded. The case highlighted the importance of finalising financial matters contemporaneously with the divorce to prevent future claims.

Briers v Briers (2017)

This case involved Glenda Briers and her ex-husband John Briers. The couple separated in 2002 and divorced in 2005, but Glenda Briers made a financial claim against John ten years later in 2015. John Briers had built a successful sports retail business that significantly increased in value after their separation. The court awarded Glenda Briers a substantial portion of the marital assets, ruling that the business growth during the marriage was a joint effort and therefore, she was entitled to a share. This case underscored the need for clear agreements and settlements at the time of divorce to prevent subsequent claims on future wealth accrued after separation.

Both cases are significant in family law, illustrating that financial claims can be made years after a divorce, and the importance of legally finalising all financial ties alongside the divorce proceedings to avoid future legal disputes.

Is the breadwinner entitled to more than the homemaker?

A common misconception people have in relation to finances is that the breadwinner is entitled to more than the homemaker is. The legislation provides that the court must have regard to all factors from Section 25(2) Matrimonial Causes Act 1973; however, it is clear that this also includes contributions to looking after the family home or caring for the family. In order for the court to depart from equality in those circumstances, the breadwinner must show that they have made an exceptional contribution. This is assessed on a case-by-case basis. It should not deter homemakers from bringing such proceedings.

Inheritance in relation to matrimonial assets

Inheritance is also widely questioned. In essence, the court will look at the duration of the marriage and the duration of the inherited wealth, when considering whether the inheritance should form part of the matrimonial assets.

Our Team

At Duncan Lewis Solicitors, our Family department comprises of lawyers specialised in handling cases involving High Net Worth individuals. We can provide expert legal advice to help you determine whether the assets in a specific trust are likely to be considered as part of the marital estate, eligible for division between the parties, or if they are more likely to be considered non-matrimonial and excluded from the division. Our team of High Net Worth Divorce Solicitors are dedicated to assisting you with all aspects related to divorce or separation.

For more information on our high net worth divorce specialists here

If you need guidance and support in navigating the complexities of separating financial and ownership structures during a high net worth divorce, get in touch with Amanda Willmore via email AmandaJ@duncanlewis.com or via telephone on 02070147305.

Duncan Lewis Solicitors

Duncan Lewis Solicitors, an award-winning law firm, is renowned for its exceptional legal services and commitment to justice. The company employs a team of highly skilled solicitors offering top-tier representation in 25 fields of law, and ranked as top tier by the Chambers and the Legal 500 legal guides, and as one of the top 250 law firms in the country by the Times. Duncan Lewis was crowned Law Firm of the Year at the LexisNexis awards 2024, further establishing its credentials as one of the leading law firms in the UK.