However, this doesn\u2019t necessarily mean that the business itself has to be split up and shared between both spouses. Every case is different, and what happens to a company depends on several factors, including:<\/p>\n
- \n
- Does the business belong to both spouses or just one?<\/li>\n
- Are both parties involved in the company? If so, in which capacities and to what extent?<\/li>\n
- Has profit from the company been used to sustain the couple\u2019s shared lifestyle?<\/li>\n
- Are any business assets secured against the marital property?<\/li>\n
- How much is the business worth?<\/li>\n
- What other assets does the matrimonial pot contain?<\/li>\n<\/ul>\n
There are several options available when it comes to dividing a company during divorce and ensuring that it remains under your ownership and control. You can achieve most of these solutions by negotiation.<\/p>\n
1. Giving up alternative marital assets<\/h4>\n
If only one spouse is involved in the business, the courts will generally try to maintain the existing status, rather than order the company owner to give up or share their business interests.<\/p>\n
In such instances, the couple will usually have to negotiate over alternative marital assets (e.g. the family home, savings, and investments) equal to the value of the business, ensuring both parties receive a fair settlement. This is known as \u2018offsetting\u2019.<\/p>\n\t\t
\n\t\t\t\n\t\t\t\t![](\"https:\/\/cdn-brand.s3.eu-west-1.amazonaws.com\/assets\/images\/WFT_BANNER_326x341.png\"\n\t\t\t\t\talt=\"Worldfirst)
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\n\t\t\t<\/a>\n <\/div>\n \nHowever, the courts may deem it necessary to divide ownership of business interests if the marital pot does not contain sufficient alternative assets. This can be achieved by one spouse transferring some of their shares to the other.<\/p>\n
2. Buying out the other spouse<\/h4>\n
If both spouses own and control the business, it may be best for one party to buy out the other. Doing so would provide a clean break and enable the business to continue operating under the sole ownership and control of just one of the parties.<\/p>\n
What are the articles of association?<\/span><\/a>\n What is a shareholders\u2019 agreement and why do I need one?<\/span><\/a>\n Why do companies use multiple share classes?<\/span><\/a>\n <\/p>\n
Ideally, the company\u2019s articles of association and shareholders\u2019 agreement will include pre-emption rights and provisions setting out exactly what should happen in the event of a divorce.<\/p>\n
This is one of the reasons why it is so important to have comprehensive articles and a properly drafted shareholders\u2019 agreement<\/a> when you set up a limited company.<\/p>\n
3. Providing spousal maintenance<\/h4>\n
Another option is for one spouse to provide the other with spousal maintenance<\/a> from the company\u2019s income, either indefinitely or for a fixed period of time.<\/p>\n
This may be the best solution if the company has been sustaining the couple\u2019s shared lifestyle throughout the marriage.<\/p>\n
Such an agreement ensures that whilst the business remains under the control of one spouse, the income it generates continues to support both parties financially.<\/p>\n
4. Selling the company<\/h4>\n
Generally, the courts prefer to maintain a company\u2019s existing ownership status and compensate the other spouse with alternative marital assets.<\/p>\n
However, this is not always possible. In rare instances, the courts can order a company to be sold if it is the only way to reach a divorce settlement that is fair to both parties.<\/p>\n
Selling a company may also be the only option if it is jointly owned and operated by both spouses, and neither one agrees to transfer their shareholdings to the other.<\/p>\n
What\u2019s the best option?<\/h4>\n
No two divorces are the same, so there is no single solution for dealing with personal and business assets acquired before or during the marriage.<\/p>\n
You will need to take independent legal advice, obtain an expert valuation of the business, and seek specialist guidance on the potential tax implications of any divorce settlement.<\/p>\n
Valuing a company during divorce<\/h3>\n
When deciding what to do with a company, the first thing that the courts must establish is the value of the business interests in question.<\/p>\n
Valuing a company can be complex, costly, and time-consuming. Nevertheless, obtaining an accurate valuation is vital to ensure the divorce process is fair, transparent, and as straightforward as possible.<\/p>\n
The most common way to value a company<\/a> during divorce is to appoint a single joint expert (i.e. one independent financial appraiser) to work on behalf of both parties. This is far more efficient and cost-effective than each spouse arranging separate appraisers.<\/p>\n
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\n <\/a>\n <\/div>\n \nWhen establishing a valuation, the single joint expert will consider various aspects of the company, including:<\/p>\n
- \n
- Business assets – This is everything that the company owns (such as property, equipment and stock, cash in the bank), as well as turnover, profit, and liabilities.<\/li>\n
- Cash flow – Based on a company\u2019s current income, cash flow forecasts are sometimes used to estimate how profitable a business will be in the future.<\/li>\n
- Comparable analysis – This involves assessing the value of other similar businesses to determine the relative value of the company. It is a useful approach if the company does not have many assets, or when cash flow forecasts cannot be achieved.<\/li>\n<\/ul>\n
The appraiser will provide an accurate and up-to-date valuation of the business, which will determine the figure that is added to the matrimonial pot.<\/p>\n
How to protect your company from divorce<\/h3>\n
There are a number of steps that you can take to protect your company from divorce. To be effective, these really need to be put in place as early as possible.<\/p>\n
Prenuptial and postnuptial agreements<\/h4>\n
Prenuptial and postnuptial agreements<\/a> are contracts that a couple enters into before or after they get married. The agreement stipulates how each person\u2019s assets, including property and business interests, are to be divided in the event of the dissolution of marriage.<\/p>\n
These types of agreements are not automatically legally binding in the UK. However, the courts will enforce the agreed terms in the vast majority of divorce cases, provided they are fair and reasonable.<\/p>\n
Additionally, the courts must be sure that both parties received independent legal advice and chose to enter into the agreement of their own volition.<\/p>\n
Do not involve your spouse in the company<\/h4>\n
It is common for small business owners to transfer or issue shares to their spouses, appoint them as directors or company secretaries, or hire them as an employee.<\/p>\n
Whilst doing so can be beneficial for tax purposes, it can give rise to the argument that your spouse participated in the company\u2019s success and has a legitimate claim on the business. In certain situations, it can also lead to employment law claims.<\/p>\n