Your Financial Rights on Divorce
Divorce and separation will most likely involve the division of matrimonial assets, such as property, shares, bank accounts or even furniture. In English law, there is no formula per se for calculating division of assets in a divorce. Every divorce is different and needs to be considered on the facts. Your situation may be very different to that of a friend or relative who is going through a divorce. There are a range of factors and guiding principles that the Courts take into account to reach their decision. Ultimately, the aim is to achieve a clean break between parties (if possible) and to achieve a fair financial outcome for both parties. This will take in to account all assets, whether owned by one party or the other.
Reaching a financial settlement need not be through the court system. There are a range of options for reaching a settlement such as negotiation, mediation, arbitration and more. Our lawyers will discuss which option is best for you.
Factors to be Considered
Here are some of the factors that will be taken into account when considering the division of assets, as set out in Section 25 of the Matrimonial Causes Act 1973 (MCA 1973):
- Income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future,
- The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- The standard of living enjoyed by the family before the breakdown of the marriage
- The age of each party to the marriage and the duration of the marriage;
- Any physical or mental disability of either of the parties to the marriage;
- The contributions which each of the parties has made or is likely, in the foreseeable future, to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
- The conduct of each of the parties, if that conduct is such that it would be inequitable to disregard it;
- The value of each spouse of any benefit that one spouse would love because of the divorce.
These are the legal principles that will also be taken into account, as set out in the cases of White v White, Miller v Miller and McFarlane v McFarlane:
- Needs: To ensure that parties income and capital needs are met;
- Compensation: To ensure that any party in the marriage is compensation for any financial disadvantage as a result of, for example, sacrificing their career to care for the children;
- Equal sharing: That the assets built up during the marriage are shared equally between spouses, unless there is a good reason not to.
Welfare of the Children
If there are any minor children in the family, i.e. below the age of 18 years old, the Court’s paramount consideration will be the welfare of the children, and ensuring that their needs (housing and income) are taken care of.
Matrimonial vs Non-Matrimonial Assets
Generally speaking, all assets acquired by parties during the marriage, apart from gifts, inheritance or pre-acquired assets, are considered matrimonial assets. The family home is usually considered to be a matrimonial asset regardless of whether it was brought into the marriage by one party or not. However, in the case of a short marriage with no children, it is unlikely that any asset acquired prior to the marriage will be considered a matrimonial asset.
In a long marriage where the parties have children, the starting point for division of assets is usually 50:50. Equal division of assets remains subject to needs of the parties. If the needs of parties and any children cannot be met by an equal division of assets, it may be the case that one party receives a slightly larger percentage of the total assets as compared to the other party. It may also be the case that assets acquired prior to the marriage or brought in as an inheritance be considered as part of the matrimonial pot to be divided between parties.
Various Orders that the Court Can Make
- Payment of a lump sum (a sum of money)
- Sale or transfer or property
- Pension sharing order
- Spousal maintenance (maintenance for a wife or husband)
- Child maintenance
Speak to Us Today
Our clients commonly have concerns about the following issues:
- Protecting your assets and income from division during divorce
- Protecting assets acquired prior to the marriage or inherited from family
- Obtaining interim financial support from your spouse
- Protecting assets from being transferred or gifted by a spouse during a divorce
- Protecting income from the over spending of one spouse during a divorce
- How to achieve a fair settlement outside the court
Our lawyers are well-equipped to advise you on the current law relating to financial settlements in a coherent and understandable way. We will relate our advice to your particular circumstances, to enable you to consider the type of settlement that would suit you. We will encourage and assist you to reach an amicable agreement with your spouse. This can be formalised by way of separation agreement or court order to ensure that you are protected from claims in the future.
Depending on the circumstances of your case, our lawyers may recommend an application to court for:
- Obtaining maintenance urgently from your spouse
- Obtain disclosure of your spouses’ assets
- Prevent removal or sale of assets by your spouse
- Obtain financial settlement by initiating the court timetable.
There are various other protective measures that can be taken at the time of separation, for example, the entry of a ‘Matrimonial Home Rights Notice’ at the Land Registry to protect an interest in a home owned in England by one spouse and not the other.
We will be able to discuss such safeguard and preventive steps with you during an initial consultation. Our consultations typically last an hour, and can take place via our video link system, telephone or in person. We will discuss your options with you from the outset, including the costs, timescale and likely outcome of any course of action, so that you can make an informed decision on the next steps of your case.
