Is Everything Split 50/50 in Divorce?

There is no set formula when looking at a financial split within a divorce in England and Wales. The following article provides a general overview of the ways financial settlements are often reached and our team of divorce solicitors in Milton Keynes are here to provide expert and detailed advice tailored to your circumstances.

There are matters to which the court should have regard and these are set out in section 25 of the Matrimonial Causes Act 1973 and are summarised as follows:

(a) the 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, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future

(c) the standard of living enjoyed by the family before the breakdown of the marriage

(d) the age of each party to the marriage and the duration of the marriage

(e) any physical or mental disability of either of the parties to the marriage

(f) 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

(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it

(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

As can be seen, the court take into account the circumstances of each case. The starting point for consideration is often an equal 50-50 split of capital and pensions, but then the court take into account reasons why one person should have more or less than 50% using the points above as guidance. Whether maintenance for a spouse should be paid or not depends largely on income needs of both spouses and the income and earning capacity of each.

I often use the analogy with my clients of the ‘scales of justice’ with the two large pans carefully balanced on either side of the central pivot. The symbol represents the ‘weighing’ of two sides of a debate. The reason why we do not have a set formula for division of financial assets upon a divorce is that each case is different and in looking at what is fair individual factors of a particular case are considered (as per points ‘a to h’ above). Fairness can often be different in the eyes of the beholder hence guidelines help not only the court but also solicitors when advising their clients. A fair settlement is one that takes into account all relevant circumstances of the case.

Taking into account the matters set out above in section 25 of the Matrimonial Causes Act, the first thing that is often looked at are the ‘needs’ of the parties. These will include housing needs and any other pertinent capital needs as well as income needs. Where some of the financial assets have come from outside the marriage such as an inheritance it can in certain situations be possible to ring fence some or all of them. These are often referred to as “non-matrimonial assets”.

However, there is no set rule that non-matrimonial assets can be discounted as usually the needs of the parties come first and, taking into account the circumstances of the case, if the needs dictate that all assets should be utilised then that will often be the case. If needs can be satisfactorily met and there is then a surplus of assets then distribution of those assets will be looked at in accordance with ‘a – h’ above. As stated, the starting point can often be an equal split of assets with a potential move away from an equal split dependent upon the circumstances of the case.

You can reach agreement with your spouse directly over the split of financial assets although it is highly recommended that you obtain legal advice over what a fair split may look like dependent upon the circumstances of your case before so doing. You do not however always need a solicitor in Watford to negotiate on your behalf and, as mentioned, can talk directly with your spouse or use a mediator to assist you to do this. Alternatively in some cases you can now both instruct the same solicitor who will advise you both using the “Resolution Together” model.

Another approach to reaching a financial agreement is to use the “Collaborative Law process” where you and your spouse both instruct a collaborative solicitor each and the lion’s share of discussions and negotiations take place round a table in four way collaborative meetings with you, your spouse and the two collaborative lawyers. This can be extremely beneficial as you both feel supported and can be guided and advised when necessary, whilst ensuring that there is good communication between the two of you, and the opportunities for misinterpretation are minimised.

As can be seen, there are many ways that you can try to reach an amicable financial agreement with your spouse without getting the court involved. However, once agreement has been reached you should then obtain an order from the court confirming that agreement. This is fairly straightforward and is known as obtaining a “consent order”.

Of course, if after trying to obtain agreement amicably you are both still poles apart then you can make an application to the court to ask a judge to consider the financial aspect of your case and make an order or, alternatively, could consider jointly appointing an arbitrator for this purpose.

The short answer is yes. The duration of the marriage is one of the matters that the court must have regard to. When looking at the length of the marriage the court will take into account a seamless period of cohabitation prior to marriage and include that. By way of example, a couple could have lived together for 20 years and then subsequently married with the marriage breaking down after a further five years. The court would consider the whole cohabitation/marriage relationship as a substantial period of time of 25 years. In a short cohabitation/marriage period a court would generally take a less generous view on ‘needs’ of the parties and would have a close that I of financial assets that had come into the marriage from external sources – ‘non-matrimonial assets’.

There is no set rule to who gets the house in a divorce. Consideration will be given as to whether there is any need or wish to retain the family home, or whether it should be sold. Sometimes where there are children and the finances allow it the house will be preserved and the person primarily responsible for the day-to-day care of the children may well remain living there. Indeed, there can be cases where there are no underage children where retaining the house for one party is the logical approach. However, the court are not averse to ordering that the family home is sold whether or not there are underage children, if this is financially needed. Ideally the court will want to ensure that both parties are reasonably housed.

Ready to take the next step? As leading divorce lawyers in Milton Keynes, our team of family law specialists can advise and guide you from the moment we start working with you. We also have offices in in Bicester, Watford and oxford, hemel hempstead and London. Talk to us in confidence and find out where you stand. Get in touch – we’re here to help.

This article is intended for the use of our clients and other interested parties. The information contained in it reflects the author’s view and is believed to be correct at the date of publication. However, it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional legal advice.