A brief guide to dividing finance and property on separation

There is no specific formula for the division of assets and finances and, whilst ordinarily the starting point will be a 50/50 equal split between the parties, there are a number of factors to be considered. These include but are not limited to:

• Children – the welfare and living arrangements of any children of the marriage under the age of 18 will be the Court’s first priority.
• Your respective ages – this will have an impact both on your earnings capacity and your ability to service any existing or future mortgage. Consideration will also need to be given to arrangements upon retirement.
• Length of marriage/civil partnership – if your marriage or civil partnership has been relatively short, and you have not lived together for a substantive period of time prior to entering into the marriage or civil partnership, it is unlikely that the assets will be divided equally, particularly if one of you initially brought more assets to the marriage that the other.
• Present and future financial needs and responsibilities – if you are currently paying maintenance in respect of children who are not of the current marriage/civil partnership, this will need to be factored in.
• Anticipated living arrangements – future and current rental or mortgage costs will be a significant determining factor for the Court to consider. If there are limited assets and income within the marriage/civil partnership, the division of assets may be based upon your strict needs. Therefore, if you are living in a three-bedroomed house but strictly only require a one-bedroomed property, you may be required to downsize to ensure that your spouse’s needs can be met.
• Current and future living expenses – in particular, it may be necessary to address what childcare arrangements may be required in order to enable each parent to earn a sufficient income.
• Standard of living – the Court will review each party’s standard of living prior to and following separation. Often adjustments will need to be made, as parties may not be able to afford the same standard of living alongside the expenses of two households rather than one.
• Role in the marriage/civil partnership – generally, equal importance is attributed to the roles of “breadwinner” and “homemaker”. The Court may well take into account the fact that one party has sacrificed a career to work within the home (for example as the children’s primary carer) and the difficulties that partner may encounter in attempting to return to employment.
• Physical or psychological illness – if either you, your partner or child(ren) has a long term physical or psychological illness or disability, those needs will need to be financially accommodated and parties will have to be mindful of the effects of earning capacity and accommodation requirements.
• The value of any benefit that may be lost – if you are coming up to retirement it is likely that you will be concerned as to your financial position in retirement, particularly if one of you has a pension and the other does not. It is important to note that Jersey courts cannot make pension sharing or splitting orders. That said, it may be that, whilst one partner retains a particular asset or the income therefrom (for example a pension or shares portfolio), the other partner may take a larger portion of equity from another assets (for example the matrimonial home, if sold).
• Conduct – this will rarely be taken into account unless it is extreme. If you are unsure as to whether your spouse’s conduct is sufficient to warrant consideration in the context of the division of matrimonial assets and finances, please do not hesitate to contact one of our Family lawyers who will be happy to discuss this with you.

Above all, the Court will attempt to achieve a settlement which is fair for both parties. Often the Court will attempt to achieve a “clean break” meaning that the parties are not tied together by continuing financial obligations. That said, this is not always possible where there is significant disparity between the parties’ earning capacities, and a clean break does not eliminate responsibilities for children.

Orders which may be made

The Court may:

• order the sale of a property and the division of the sale proceeds
• order that a property be transferred from one spouse to the other
• allow one party to continue living in a matrimonial property for a specified period of time (e.g. until children attain a certain age) following which the property will be sold and the proceeds divided
• order the transfer of a lump sum of money from one spouse to the other
• order a transfer of shares from one spouse to the other

The Court cannot make pension sharing or splitting orders in Jersey.

Urgent legal assistance

It may be vital for you to seek legal assistance as soon as possible, particularly in circumstances where:

• there are high value businesses or trust property involved
• you entered into a pre-nuptial or post-nuptial agreement with your spouse
• you believe that your spouse may attempt to conceal or dispose of matrimonial assets
• a third party is bringing a claim against matrimonial assets, or claims town some or all of your spouse’s property
• where you believe that there are assets which should not form part of matrimonial property (i.e. those which you solely own and which have not been used during the course of the marriage or civil partnership)