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A fair share doesn't have to mean equal

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This column was first published in the Wigan Observer on the 28th of January 2014

Q: I am currently in the process of separating, how should my partner and I go about dividing our possessions?

A: When separating from a partner, dividing the personal possessions may seem to one of the most trivial things to consider but is often one of the hardest parts of the process especially when sentimentality comes into play.

Often, although far from always, some of the bigger “assets” from a relationship, such as the home or a pension fund are easier to divide. The more money there is, the easier it is to take account of individuals’ actual needs and in the bigger money cases a larger “pot” allows equality between a divorcing couple, or one ending a Civil Partnership.

However, personal assets such as the contents of homes, cars and even family pets can hold emotional as well as financial value. As we all know once emotions are brought into consideration, goodwill and sensibility can go out of the window.

Any experienced Family Lawyer will know that family cases are some of the difficult ones to try and maintain a focus upon the issues without going down a route that may cause greater expense for a client without necessarily achieving what they want. It is important to try and ensure that expectations are managed. Often they are not and perhaps the personal nature of family law problems and individuals expectations not being matched with an outcome, combined with the fact that an individual is spending their own money, means that family cases are one of the most complained about on an annual basis.

It’s a fair comment that Lawyers seem to make money from other’s distress but what I have learned is you should never underestimate anyone’s ability to have an argument about unnecessary things if they lose focus of the “bigger picture” in trying to bring a sensible and amicable end to their relationship. Such arguments simply increase the anxiety for the separating couple, greater costs and more time sorting matters out.

To achieve a reasonable settlement for both parties, the possessions should be divided fairly. Fairly doesn’t always mean equal though. Short of taking a saw to the coffee table, equal might be impossible to achieve. The needs of children should be prioritised meaning a parent leaving home may have to be content with less from the home than might otherwise have been the case.

Unfortunately it’s the case that separating couples can argue over possessions that hold little, if any value, in some cases just to spite each other. I can think of more than one case in which I have been involved whereby an agreed financial settlement worth hundreds of thousands of pounds has been at risk of falling apart because there was a disagreement over something as financially insignificant as a printed picture, or a tea set.

Generally speaking a court would be very reluctant to get involved about the ordinary contents of a home, even less so with a family pet. Each person should really keep their own personal possessions. The best thing to do if you really can’t agree is to make a list of items to be divided. See if you can each take it in turns choosing one item until the list is clear.

When thinking about who will take possession of the furniture, you need to consider which pieces would be suited to your new homes. A fair approach would be to equally divide all of the marital possessions, so that you can both keep some items of furniture as well as each buying new belongings.

If a court was really forced to make a decision it could do so but the risk is that a court might simply order disputed items to be auctioned and any monies from sale of the second-hand goods to be divided. Neither party is happy and they are left with less than they started.

It will rarely be worth applying to court if the only issue is if you can’t come to an agreement over who will keep certain possessions following divorce or dissolution of a Civil Partnership. Those that have simply lived together have even less options and that they might find the value of the items in dispute mean they could only apply to the “small claims” court.

It is always important to strive to compromise. Unfortunately, problems can occur when separating couples start to associate retaining certain possessions as ‘winning’. It will be mandatory from April that separating couples have to contact a mediator to try and sort things out before applying to court. You may well find that with the input of a trained mediator agreement can be reached, even if at first you might be reluctant to attend.