"I have my own business. If we separate what are the implications?"

Anne Thist Articles

By specialist family solicitor Anne Thistlethwaite.

It may come as a nasty shock to the owner of a small business to discover the assets of the business can be distributed in the financial settlement, in the same way as other family assets. This may be the case even where one spouse has had no involvement in the business at all.

All the assets in which either spouse have an interest are taken into consideration by the court, and this includes shares in a company, interests in a partnership and the tools of the trade of a self-employed spouse. Where the value of the business assets cannot be agreed, an expert valuer may need to be appointed to advise on value.

There should be no discrimination simply because one spouse has acted as the family breadwinner and the other as the homemaker and primary carer of children. The courts have made it clear that contributions to the marriage will be regarded as of equal weight. The spouse who has run the business cannot therefore expect to achieve a greater share of the assets unless there are very exceptional circumstances. The first priority in any event is to meet the basic needs of both spouses.

Sometimes in order to achieve a fair settlement between the spouses, it may be necessary for the family business to be sold. This is definitely the exception rather than the rule since the income from the business may be needed more than ever following divorce, if it is to fund the cost of running two households rather than one. But where, for example, the spouses are approaching retirement and the bulk of their assets are tied up in the business, a sale may be the only feasible way for a fair division of the capital to be achieved.

For advice on divorce involving a small business and all family law issues contact AMD’s specialist family team by telephone on 0117 9621460 or e-mail family@amdsolicitors.com.

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