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Before a married couple can decide how assets should be divided, firstly they need to determine which assets are matrimonial and non-matrimonial. Only then can the court consider what division would be appropriate. Matrimonial assets Matrimonial assets are financial assets that you and your spouse have acquired during the course of the marriage such as property, savings, personal belongings and pensions. These are the assets that will be shared between the spouses. Non-matrimonial assets   Non-matrimonial assets are financial assets acquired before or after the marriage and are treated differently to matrimonial assets. These assets must not have been mingled during the marriage - for example, if a spouse has purchased a car with personal inheritance during the marriage. How does the court make a decision?  There are no rules regarding how the assets should divided on divorce, only guideline. The starting point is usually for matrimonial assets to be divided equally. The court will also take into account Section 25 of the Matrimonial Causes Act 1973 which sets out a checklist of factors that the court will apply to each individual case. The Section 25 factors are as follows:

• The welfare of any dependent children
• Financial needs, obligations and responsibilities of each spouse
• The financial resources available to each spouse
• The standard of living enjoyed during the marriage
• The age of each spouse and the duration of the marriage
• Whether a spouse suffers from a physical or mental disability
• The contributions which each spouse have made or are likely to make in the foreseeable future
• The loss of any chance to acquire benefits, such as loss of pension rights
• The conduct of each spouse, if that conduct is such that it would be unfair for the court to disregard it – for example, dissipation of joint assets

The court have a wide discretion when applying these factors, but the aim is to divide the assets fairly. Fairness does not necessarily mean an equal split. The key point is that the court need to ensure that the needs of both spouses and the needs of the children are met when deciding how assets should be divided. It is therefore possible that the court will make an order where there is an unequal division of the assets. For advice on how assets are divided on divorce, please contact a member of our Team.

The cost implications of losing a TOLATA (Trusts of Land and Appointment of Trustees Act 1996) claim can vary depending on several factors, including the complexity of the case, legal fees, court costs, and any potential adverse orders made against the losing party. Some potential cost implications may include:

• Legal Fees: The losing party may be required to pay their own legal fees as well as a portion of the other party's legal costs. Legal fees can accumulate quickly, especially in complex or protracted cases.
• Court Costs: The losing party may be ordered to pay court costs, which can include fees for filing court documents, expert witness fees, and other associated expenses.
• Damages: In some cases, the court may order the losing party to pay damages or compensation to the other party for any losses incurred as a result of the dispute.
• Adverse Orders: The court may make adverse orders against the losing party, such as requiring them to sell the property or granting exclusive possession to the other party. These orders can have significant financial implications.
• Appeal Costs: If the losing party decides to appeal the court's decision, they may incur additional legal fees and court costs associated with the appeal process.

Overall, losing a TOLATA claim can result in substantial financial consequences, so it's essential for parties involved in such disputes to carefully consider their legal options and seek professional advice to minimise potential costs.

Yes there are alternative options to court litigation. Alternate Dispute Resolution (ADR) in the UK refers to methods of resolving disputes outside of traditional court proceedings. ADR methods are generally considered to be faster, less formal, and more cost-effective than litigation. Some common forms of ADR in the UK include:

• Mediation: A neutral third party, called a mediator, facilitates discussions between the parties to help them reach a mutually acceptable resolution. Mediation is voluntary, confidential, and can be used to resolve a wide range of disputes, including those related to family, employment, commercial, and property matters.
• Arbitration: Parties submit their dispute to an impartial arbitrator, who makes a binding decision based on the evidence presented. Arbitration can be faster and more flexible than litigation, and parties can choose their arbitrator and the rules that will govern the process.
• Negotiation: Parties can attempt to resolve their dispute through direct negotiation, either independently or with the assistance of legal representatives. Negotiation allows parties to reach a settlement agreement tailored to their specific needs and interests.
• Collaborative Law: Each party is represented by their own collaboratively trained lawyer, and all parties agree to work together to reach a mutually acceptable resolution. Collaborative law encourages open communication and cooperation between the parties and their lawyers.

ADR is often encouraged by the courts in the UK, and parties may be required to consider ADR before proceeding to trial. ADR can offer numerous benefits, including cost savings, faster resolution times, and greater control over the outcome of the dispute. However, it's essential for parties to carefully consider their options and seek legal advice

The executor of a Will is ultimately responsible for ensuring that the deceased's estate is properly wound up and that the wishes in their Will are carried out. To remove an appointed executor from a Will, the beneficiaries under the Will, together with any other interested parties, must be able to prove to the court that the executor is ‘unsuitable’ and/or ‘incapable’ of carrying out their duties.

Unsuitability

The court will only take into consideration a breakdown of a relationship between an executor and the beneficiaries, only in circumstances where it makes the take of the executor impossible. Therefore in the context of unsuitability, to remove an executor evidence will need to be provided that the executor has acted unlawfully and/or in conflict with his duties under the Will. This can involve a range of issues that would be construed as misconduct, ranging from incompetence in the administration of the estate, misappropriation of assets, to acts of dishonesty. The court does not necessarily need to determine wrongdoing or default on the part of the executor, the guiding principle of the court is to determine the suitability of an executor and whether the administration of the estate is being carried out properly.

Incapability

Such consideration in these circumstances relates to whether the executor is physically or mentally well enough to administer the estate. An executor may be incapable of carrying out their duties if they have suffered a physical or mental impairment. If in the circumstances an executor does not agree to step down, then legal action may be required to prove their impairment and the impact it has on their capacity as an executor.