Divorce - what am I entitled to?

AuthorAndrew Stynes

Divorce – what am I entitled to?

One of the first things we are often asked by clients considering divorce, is ‘what am I entitled to?’ or ‘who gets what?’

Typically, finances are second on a client's list of concerns, behind children. It is understandable. According to a 2018 study, money worries are the biggest reason for marriages ending.

Nobody enters into a marriage hoping or expecting it to end in divorce; however more and more marriages unfortunately do, with 42% of all marriages in England and Wales now ending in divorce.

While there are no concrete rules concerning the division of assets in divorce; in this article Andy Stynes outlines what can be considered.

Who gets what in a divorce?

The starting point for the Court, particularly when looking at the family home and marriages of 10 years or more (including period of cohabitation pre-marriage so long as there has not been any period(s) of separation), is to ask the question, “why shouldn’t there be an equal split of the assets?”

A party to a short term marriage could argue that they should each walk away with what they came into the marriage with. However, the factors set out below may slide this scale and alter this position and ultimately determine what the financial arrangements should be.

What can be claimed for in divorce?

When a couple are separating, either party can apply for a financial order. Some examples of the orders available to the parties are as follows:

Spousal maintenance
Lump sum
Property adjustment orders (altering the ownership of property)
Pension sharing orders

How much do you get in divorce?

What a party might be entitled to on divorce depends on the length of the marriage and the factors that are set out under section 25 Matrimonial Causes Act 1973. The factors are:

income, earning capacity, property and other financial resources
financial needs, obligations and responsibilities
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
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 in the opinion of the court be inequitable to disregard it
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

Who gets the house in a divorce?

The parties can decide between themselves what happens to the house. If neither party can buy the other out, or agree as to what will happen, then the property may need to be sold.

One important factor to consider here is if there are any children of the family who are under the age of 18 and who are still living in the house. The Court will consider the needs of the children and they will often try to keep the children in the property where possible.

How is property divided in a divorce?

The property of the couple is split into two categories: matrimonial property and non-matrimonial property. The matrimonial property is what is called the “matrimonial pot” and is to be split and sorted between the two parties.

What is matrimonial property?

Matrimonial property is generally property acquired during the marriage.

Non-matrimonial property is generally pre-marital property.

However, when a Court is looking at the assets of the parties, they take into account what they have at that time. They do not necessarily cut it off from separation, so any inheritance or assets gained since separation may be included in the “matrimonial pot”.

To decide what is or is not matrimonial property, the Court may look at whether the property has always been kept separate, or whether it has been intermingled with other matrimonial property.

Do we have to go to Court in the event of a divorce?

No. Before proceeding with any Court application (which should be a last resort in any case), the parties should attempt Mediation.

Mediation is a great way of helping a separating couple to come to an agreement amicably, without the need for the Courts involvement.

A mediator is a neutral third party who will assist in negotiations and discussions regarding how the finances should be sorted and how the assets should be split.

At Mediation, the parties are more likely to come to an agreement that they both feel they can live with, rather than having a decision imposed on them by the Court, which they may both not like.

Divorce solicitors in Bournemouth, Christchurch and Ringwood

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