How the courts will apportion assets of a divorcing couple

  • Describe some of the challenges the courts face when dividing up assets of divorcing couples
  • Explain some of the problems around maintenance payments from income
  • Describe how the courts resolve these problems

Lord Justice Wilson stated "it is impossible to be categorical about what the law expects in this area", and went on to note that for a couple approaching retirement, who may have accumulated significant capital through savings from income, the distinction between capital and income is likely to be treated by the court as more fluid. 

The Court of Appeal considered the issue again in 2018 in Waggott.

The wife was in her late 40s and had given up work early in the 20 year marriage to support the husband's career.

The wife's total assets following the capital division were £9.76m.

The trial judge had ordered the husband to pay maintenance equal to the wife's income needs of £175,000 per annum for life. 

On appeal, the husband successfully argued that the wife should have to use some of her sharing award to meet her ongoing needs.

The Court of Appeal accepted that it would be reasonable for the wife to amortise around 10 per cent of her sharing award, whilst reiterating that a flexible approach to this question is necessary. 

In 2019, there were two conflicting High Court decisions. 

O'Dwyer v O'Dwyer [2019] EWHC 1838 concerned a marriage of almost thirty years which had produced four children; the parties were now in their early 60s.

The sharing of the parties' assets left the wife with £3m; after meeting housing and other costs she would have around £1.7m.

The husband would continue to earn a substantial income for a few years. 

In line with Vaughan and Waggott, Mr Justice Francis set out that: "Whether or not a spouse should be required to amortise their capital will be case specific".

In this case, he concluded that it would be fair for the wife not to have to amortise her capital for the remaining years of the husband's employment; thereafter she would need to do so.

In CB v KB [2019] EWFC 78, Mr Justice Mostyn took a different approach.

This was a marriage of almost 20 years (including pre-marital cohabitation); the husband was 41 and the wife 45.

The parties had six children and the wife had not worked during the marriage.

The husband was a member of a successful band and it was anticipated that he would continue to earn a high income. The wife's share of the matrimonial assets was around £5m. 

In stark contrast to the flexible approach, Mr Justice Mostyn said "I struggle to conceive of any case where in the assessment of a [wife's] needs it could tenably be argued that it was reasonable for her not to have to spend her own money in meeting them.