When a married couple separate, their financial circumstances will have to be resolved, and it is always better if that can be done by agreement. However, there are occasions when the court will have to step in to decide which of them should receive which asset and how much each should receive from the ‘pot of assets’ which have accumulated over the course of the marriage, which could include property, savings, pensions, vehicles and their business.
This also applies in civil partnership separations.
The following are some of our most frequently asked questions when it comes to divorce settlements.
When deciding how assets should be shared, it is important to identify which assets are ‘matrimonial property’. As a general rule, matrimonial property includes all the assets that a married couple have acquired during the course of their marriage and that they still have at the date of separation. However, any asset that one of them has acquired during the marriage either as a gift or by inheritance will not be treated as matrimonial property.
Also, if the family home or its furniture was acquired before the marriage to be used as a family home or furniture then that will be treated as matrimonial property and subject to division on divorce.
When deciding upon how the property assets should be divided, the key factor to bear in mind is what is fair and reasonable in the particular circumstances of the separating couple. This fair and reasonable test is what a court would have to apply. Generally it means that the accumulated assets will be divided up equally between the couple, but of course every separating couple’s circumstances are different.
Although generally assets will be divided up equally, there can be special circumstances which can justify division in different proportions. Indeed, the court could award all of the assets to one spouse and none to the other.
The special circumstances to justify an unequal division of the assets have to exist at the date the couple separate. Factors that can allow for an unequal division of assets include:
Every couple’s circumstances are different and there can be a number of different reasons why unequal division of assets could be justified. However, these do not include non-financial conduct, so for example the fact that one of the couple has had an affair is not grounds to depart from an equal sharing.
Any assets you had before you were married do not constitute matrimonial property and so are not subject to division. For example if you owned a car before you were married and you still have it at the date of separation, it is not taken to form part of the assets that should be divided on separation. Likewise, if you had £5,000 in a savings account before you were married and have not added to it or taken anything out of it at the date of separation, that £5,000 would be taken to be yours and not part of the matrimonial part.
However, if you used some of your pre-marriage savings to buy a jointly owned matrimonial home, then the position can become more difficult. If the marriage was very short, then there may be a special circumstance to depart from the usual equal sharing of the assets, but with a longer marriage there is much less justification for that. See our section on Savings and Assets for more detail on savings on separation.
There can be reasons to depart from the usual equal sharing of financial assets if one of the separating couple is to face the economic burden of caring for a child or children of the marriage under the age of 16 years. This can take account of the fact that the spouse who has care of the children may have to pay childcare while working and may have to buy a bigger and more expensive house to accommodate the children.
The court will take into account the level of maintenance (legally known as ‘aliment’) paid by the parent who does not have the care of the children. An argument for an unequal division of assets favourable to the parent with care of the children is more likely to be successful if the children are very young and the non-resident parent is not providing generous child maintenance.
The reason for divorce is not taken into account by the court when determining how to divide a couple’s assets. However, if one of the parties has squandered assets during the marriage, for example, by drinking excessively, by gambling or by frivolously giving away assets, then that can be taken account of as a special circumstance to depart from the usual rule of equal sharing.
Our Family Law Solicitors can talk you through your legal entitlement to assets on separation and advise you what options are available to you in your specific circumstances. If the asset split is under dispute, we can also help with negotiating a settlement with our Solicitors trained in alternative dispute resolution.
At Thorntons Family Law, we offer an initial free no-obligation chat over the phone to outline your options and the possible costs.
Depending on your case and circumstances, the next step is to come into one of our local offices to meet a Family Law Solicitor about your case and the way forward.
Call us on 03330 430 150 for a chat or contact us to book an appointment.
We are always clear to clients about the potential costs of any option and offer a range of payment options. In some cases we can offer clients a fixed price package. If we cannot offer a fixed price service, we charge based on the time we spend on your case, including meetings, emails, phone calls and court representations. Depending on your case and circumstances, you may also need to cover outlays, such as court costs or payments to independent experts. We will set out our fees and likely extra costs for you at the start and keep you informed of any possible changes as your case progresses.
Please note we do not offer Legal Aid for this service.
Our other clients have found the following information helped support them while going through their divorce or separation.
Property Rights on Divorce
Find out about your rights to stay in your owned or rented family home on divorce or separation.Learn more
Pension Rights on Divorce
Guidance on how pensions are treated in divorce settlements and on pension sharing orders.Learn more
Savings and Assets
How other assets such as savings or a business are dealt with on separation.Learn more
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