About 85-90% of family financial remedy cases settle before a contested final hearing. While the case Cemke v Cemke [2025] EWFC 180 is simply applying established law to the facts, it is one of the few recent family financial remedy cases that proceeded to final hearing.
The case might be useful for general readers to understand the court’s typical approach to financial remedy applications. While there may be a perception of bias among some people, the courts apply the same legal principles to both spouses, regardless of their roles during the marriage.
How do the courts consider financial remedy applications?
When the courts consider financial remedy applications, their objective is to achieve an outcome that is “as fair as possible in all the circumstances.”
When evaluating fairness, the court is required to look at the matters listed in section 25 of the Matrimonial Causes Act 1973, giving first consideration to any child of the family.
Section 25A of the MCA 1973 strongly encourages a clean break between the parties. This means that the courts prefer lump sum settlements rather than periodical payments, except where this would lead to an unfair result.
In financial remedy applications, the three essential principles are compensation, sharing and needs. Compensation is rarely applied, so it will not be discussed further in this article.
Regarding the sharing principle, the parties are ordinarily entitled to an equal division of the marital assets. Non-marital assets are usually retained by the party to whom they belong, unless there is a good reason to decide otherwise. In practice, needs will generally be the only justification for a spouse to claim non-marital assets.
Differentiating between marital and non-marital assets
The court recognises that differentiating between marital and non-marital assets is not always easy. It depends on the circumstances and the specific facts of the case. Usually, non-marital wealth has one or more of three origins:
- Property brought into the marriage by one party;
- Property generated by one party after separation; and/or
- Inheritances or gifts received by one party.
The difficulty lies in determining whether, when, and to what extent non-marital assets turn into marital assets, which need to be divided under the sharing principle. The courts might consider when the property was acquired, how it has been used, whether it has been mingled with the family finances, and what the parties intended.
The needs principle
While the sharing principle is a useful tool to achieve fairness, the needs principle will prevail if it warrants a greater award. In other words, if the required sum to satisfy one party’s needs is greater than the sum calculated under the sharing principle, the court will award the former—unless it is unfair to do so.
Needs are a flexible concept. The principle of need requires consideration of:
- The financial needs, obligations and responsibilities of the parties;
- The standard of living enjoyed by the family before the breakdown of the marriage;
- The age of the parties;
- Any physical or mental disability of the parties;
- The payer’s wealth;
- The length of the marriage;
- The source of wealth (marital or non-marital), among other factors.
In appropriate cases—typically long marriages and subject to financial resources available—courts have taken the view that needs should be set “at a level as close as possible to the lifestyle (i.e., standard of living) which they enjoyed during the marriage.”
The case also delved into the topic of delay—the lapse between the separation and the financial remedy application.
Although an application can be made at any time after the divorce has been finalised, an unjustified delay may be a factor (potentially a highly material one) when weighing the section 25 criteria.
Final thoughts
The above outlines the general approach to financial remedy applications. Before concluding, it is crucial to consider the importance of evidence and cross-examination, especially in situations where facts are in dispute.
Understandably, couples may not find it necessary to store evidence when the relationship is solid. However, often, a single piece of evidence can sway the judgment one way or the other. It may therefore be prudent to keep records of any financial transactions to protect your interests.
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