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Your children versus your health?

February 18, 2011 Speech Box

When a couple divorces, the court has discretion as to how to divide the matrimonial assets to ensure a fair result.  The law states that any children of the marriage must be the court’s ‘first consideration’.  However, a recent case in the news has highlighted that sometimes putting the children first can create an unfair result for one spouse. 

Kevin Mansfield had his leg amputated in 1992 following a serious road accident.  He received £500,000 in compensation to cover the cost of his future care.  Five years later, he met his wife Catherine and they married in 2003 and had two children.  They divorced five years later and decided that the children were to live with Mrs Mansfield.  The judge hearing the case decided that Mr Mansfield’s compensation should be treated the same as any matrimonial asset and then proceeded to award Mrs Mansfield half, making reference to the needs of the children when doing so.  The case is being appealed and it will be interesting to see what the appeal court decides as an important point of principle is raised in the case. 

Whilst the law says that the children should be the first consideration, this is not the same as saying that they are the paramount consideration or that their needs should trump all others.  I believe that the judge in this case gave too much weight to the children’s needs without properly considering Mr Mansfield’s needs generated by his disability.  The other issue is that personal injury compensation cannot be treated the same as other marital assets.  A large proportion of a compensation payout is made up of the estimated cost of the victim’s future care and loss of earnings that he will suffer as a result of the injury.  For that reason it cannot be treated as a normal asset because its use has already been allocated, it is not spare cash.  It would seem fairer to ringfence the compensation as far as is possible and perhaps impose more of an expectation on Mrs Kennedy to increase her earning capacity in order to support herself and the children.  On the other hand however, there is a very valid argument that the children will be put in hardship unless the compensation is divided. 

 One thing that was noted in the case however was the huge legal fees that have already been spent, a grand total of £80,000 between the couple.  If this goes to hearing on appeal, there will scarcely be any of the money left to argue about so the sooner they can agree a way forward, the better.

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