En Voyage_Issue#11_Flickbook

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.
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