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All at sea... We help people through separation, advising on all aspects of divorce, children and finances. DIVORCE SEPARATION CHILDREN FINANCES T: 01481 740002 E: enquiries@brownsadvocates.com A5 Hirzel Court, St Peter Port Guernsey GY1 2NN www.brownsadvocates.com 80 En Voyage | Aurigny’s Magazine
Business WHO GETS THE DOG? ADVOCATE ADRIAN BROWN, PARTNER AT BROWNS ADVOCATES, DISCUSSES DIVISION OF ASSETS ON DIVORCE. Unless you have been living on another planet for the past few months you will be aware that Ant McPartlin, one half of the television duo Ant & Dec, and his wife Lisa Armstrong are sadly getting divorced. One perhaps lesser known aspect of their divorce is who will have custody of their beloved Labrador, Hurley. Reports have it that custody of Hurley is likely to be shared, but how do Courts make decisions regarding pets on divorce and generally what are the rules concerning division of assets on separation? The first rule is that there are few hard and fast rules. The law relating to division of assets on divorce is fairly complex and sometimes difficult to predict. One of the main reasons for this is that the Court has a very wide discretion when deciding who gets what. The guiding principle is fairness but fairness of course is highly subjective. What may seem fair to one party may not be the same for the other. What we do know is that fairness does not necessarily mean an equal division. The parties must be left in a position of comparable standing and there must be no discrimination between the respective roles of breadwinner and homemaker, which are regarded as equal. Guernsey divorce law dates back to 1939 and simply vests power in the Royal Court to divide the assets between the parties. By custom, Guernsey has adopted the principles of English divorce law which provides a series of factors to be taken into account. First consideration must always be given to the needs of the dependent children. In practical terms, this usually means that accommodation should, if possible, be provided for the children and the custodial parent. In some cases, this will require the custodial parent to retain the matrimonial home and in other cases the property will need to be sold. Ideally if the available assets permit, the Court will always look to accommodate both parties. THE PARTIES MUST BE LEFT IN A POSITION OF COMPARABLE STANDING AND THERE MUST BE NO DISCRIMINATION BETWEEN THE RESPECTIVE ROLES OF BREADWINNER AND HOMEMAKER, WHICH ARE REGARDED AS EQUAL The starting point is an equal division of the assets. The Court will then consider a list of factors including the incomes and financial resources of each party, their needs, the standard of living enjoyed by the family, the age of each party and the duration of the marriage. This list is not exhaustive and ultimately the Court will take into account all the circumstances which it regards to be relevant. Pulling together these strands can be a difficult exercise which is where judicial discretion comes into play. Dividing the assets in such a way so as to create and maintain two households is often a difficult task, especially where the assets are limited and particularly so in Guernsey where housing costs are high. In other cases where the available resources exceed the immediate accommodation needs of each party, the Court can consider dividing the remaining assets relevant to their origin. This can involve splitting resources into matrimonial and non-matrimonial property, the distinction being that matrimonial assets are acquired during the course of the marriage by joint enterprise, whereas non-matrimonial assets generally accrue outside the marriage either by way of inheritance, family gift or preowned property. These types of cases can become complex but as before the ultimate test is fairness. Most divorce settlements are structured on the basis of a clean break financial settlement so that other than child maintenance, there are no ongoing financial links between the parties. In that way, both parties can move on with their lives financially independent of the other. So, what about the dog? Pets are always an emotive subject on divorce. For some they are surrogate children and are thought of with great love and affection. Whilst it may seem a little harsh, the answer is that legally a pet is considered to be a chattel and is dealt with in just the same way as the car, contents or cash. The Courts will not usually make a decision regarding who gets custody of the dog in just the same way that a Court will not divide the crockery. That does not mean to say it could not happen, but the fact that there are no reported decisions on custody of pets in Guernsey or the UK tells its own story. So, as Hurley’s future custody hangs by a thread, one hopes that Mr and Mrs McPartlin can agree shared care without having to trouble the Courts. 81
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