Q&As

How does the compensation principle to apply to pre-marital assets in a scenario where the financially weaker party to the marriage has been in a long post-separation cohabiting relationship? For example, where that party gave up a local authority tenancy to marry a homeowner, and then has a long and ongoing cohabiting relationship post-separation with another homeowner.

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Produced in partnership with Matthew Haynes of St Ives Chambers
Published on LexisPSL on 09.11.2017

The following Family Q&A produced in partnership with Matthew Haynes of St Ives Chambers provides comprehensive and up to date legal information covering:

  • How does the compensation principle to apply to pre-marital assets in a scenario where the financially weaker party to the marriage has been in a long post-separation cohabiting relationship? For example, where that party gave up a local authority tenancy to marry a homeowner, and then has a long and ongoing cohabiting relationship post-separation with another homeowner.

In a divorce, compensation forms part of the triumvirate of needs, sharing and compensation. The principle of compensation was described in Miller v Miller; McFarlane v McFarlane at para [13] as:

‘Another strand, recognised more explicitly now than formerly, is compensation. This is aimed at redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage. For instance, the parties may have arranged their affairs in a way which has greatly advantaged the husband in terms of his earning capacity but left the wife severely handicapped so far as her own earning capacity is concerned.’

See Practice Note: Compensation, sharing and equality.

As Miller v Miller; McFarlane v McFarlane at para [15] also recognises that compensation and financial need overlap, so double-counting should be avoided.

Besides compensation, the question also raises the issue of pre-marital assets. However, as the financially weaker party within the marriage, albeit having cohabited for a long time post-separation, this party’s claim for compensation on the basis of having surrendered a secure tenancy may be subsumed within her claim for needs; for

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