When Equality Is Not Fair
15 April 2008
When Equality Is Not Fair
Divorce has hit the headlines again as the court gave judgement in the McCartney case last month. This is another case of the super rich but what you may ask has that got to do with the average person such as you and me? How do the courts decide on who gets what in the normal family.
In every divorce case the court looks at all the assets that the couple have, usually just a house, car and pension and perhaps some savings. All these assets are put into a “pot” to be divided between the husband and wife. The Court looks at a checklist of factors to decide how to split the pot between the husband and the wife. The most important factor will be making sure both the husband’s and wife’s basic needs are covered and in at least nine cases out of ten this means deciding how to house the couple separately in two houses where previously there was one.
If the couple have an expensive house without a mortgage the answer is simple if not easy. The house is sold, the proceeds divided equally and the husband and wife each buy their own separate house all be it smaller than the one they are used to. No one likes to do this but at least each person can start again.
Where there is not enough equity in the family home to buy two separate properties the problem is much more difficult. The court will have to look at each persons ability to raise a mortgage. If the higher wage earner can raise a bigger mortgage perhaps he or she does not need so much of the equity. If there are children involved the parent with whom they live will need a house of sufficient size to provide bedrooms for the children. But how does this affect the other parent who also wants the children to stay with them at weekends and holidays. The truth is that where money is limited the parent with care of the children may have to take far more than half of the pot leaving the other parent to start again with a large mortgage. A far cry indeed from the position of the McCartney’s.
Does the case of McCartney mean anything for you and me? Well actually yes. That case was also decided by the issue of housing needs and in that case this issue also led to an unequal split of the assets. In the McCartney divorce the Judge said that Heather should have as much money as she needed to house herself and the children and that was only a tiny proportion of the total assets.
So does this mean that housing needs will always lead to an unequal division of the assets? The answer to that is no. Paul had already earnt his money before he met Heather and he had far more money than Heather could ever need to house herself. That is why Heather received a small proportion of the assets. The court recognised that Heather should not have a share of Paul’s assets over and above what she needed to house herself and their child. The case would be entirely different if Paul had earnt the money during their marriage. If that were the position, like it was in Paul’s marriage to Linda, Heather would have received far more.
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