The aim of this post is to explain what factors the courts consider when dividing assets between a divorcing couple. Helpful tips for any ladies (sorry guys – but it tends to be us who initiate proceedings) who want more information on what they are likely to get from a divorce…
What assets will I get from the divorce?
When assessing how to divide assets in divorce proceedings the court will look at the following main factors for each party:
2. Financial needs
3. Standard of living previously enjoyed
4. Age and duration of the marriage;
5. Any physical or mental disabilities
6. The contributions made to welfare of the family
The divorce rate has been steadily decreasing since mid-90s with a 34.3% decrease from 1993 to 2017. However, early forecasts suggest this rate has risen once again since 2020, with many blaming the Covid pandemic as the main factor. Leading British law firm Stewarts logged a 122% increase in enquiries between July and October, compared with the same period last year. This is perhaps not surprising, given the close proximity many couples will have been forced to endure, and other stresses such as job loss and illness.
What will be surprising to many, however, is that it is females who initiate the majority of divorce proceedings, with 76% of new cases coming from female clients, compared with 60% a year ago. When this is compounded by the disproportionate effect Covid has had on women*, it is more important than ever that women fully understand the process and factors involved in divorces and can accurately estimate what they will be left with if choosing to divorce their partner.
An interesting development in Autumn 2021, will be the introduction of no-fault divorces which will make it easier and smoother for petitioners to receive a divorce, in less time. This is owing to the fact that there will no longer be any need to assign and prove blame for the dissolution of the marriage. However, this will make absolutely no difference to the financial division of assets for a couple.
When couples divorce, there is a need to determine how to divide the following items:
- regular maintenance payments to help with children or living expenses
However, with increasingly advanced technologies now creating sizeable income-producing assets it will be important for parties not to overlook digital assets which have a value, such as cryptocurrencies or social media accounts e.g. influencer income. (Please see this interesting article for more info).
In an ideal situation, a couple is able to agree on exactly who gets what, confirmed in a written agreement with or without the need for lawyers. However, in reality this is more likely to be a fairy tale than real life and ultimately many who choose divorce enter into acrimonious territory or ‘contested divorce’. In situations where the court is to decide, their duty is to balance all competing interests, having regard to all the circumstances of the case with the first consideration being given to the welfare and needs of the dependent children (if any). (Matrimonial Causes Act 1973, s25) *
Factors for court (in more detail)
The court will consider the following factors:
- 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;
- 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 made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;
- In the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
Dividing the home
When working out how to divide the matrimonial home, the following options are available
- Sell the home and both parties move out.
- Arrange for one party to buy the other out.
- Keep the home and retain title of property. In these situations, one or both partners can continue to live in the home.
- Transfer part of the value of the property from one partner to the other as part of the financial settlement. The partner who gave up a share of their ownership rights would keep a stake or ‘interest’ in the home. This means that when the property is sold he or she will receive a percentage of its value.
Again, all of these options require some agreement and cooperation between both parties. In the event the parties cannot reach agreement, specific court orders can be applied for:
- Mesher Order: defers the sale of the home until a specific event triggers the sale – for example, the youngest child turns 17 or 18. This may also be used if there is ‘negative equity’ in the property, to allow the market time to recover. The net sale proceeds are then divided in accordance with the court order.
- Martin Order: defers the sale of the house, but importantly it gives one person an entitlement to occupy the property for life or until remarriage. (This tends to be when couples don’t have children).
What happens if one party solely owns the house?
The fact that the former matrimonial home is owned in the sole name of either the husband or the wife will not prevent the court from altering the ownership. A person has a right to live in a property if it is their matrimonial home. This means that even if your spouse owns the property in their sole name, you have the right to live there until your marriage ends. This is called matrimonial home rights.
What happens if both parties jointly own the property?
If the jointly owned property is to be retained by one party and there is a mortgage secured on that property, it is possible that the lender will refuse to release the outgoing party from the mortgage, and therefore both parties remain indefinitely. However, it is at the discretion of the lender, so speak to them ASAP if one party is looking to leave the title of the property.
Who gets what?
The Court will normally consider a 50/50 split of the matrimonial assets when dealing with a long marriage following the ‘yardstick of equality’.
However, this formula can be departed from, normally where one party will suffer financial hardship by the assets being divided equally. Furthermore, where one party is still the carer for young children or where health has an impact on the potential for one party to earn sufficient income to meet their needs, 50/50 may not be appropriate. The court will make this determination when weighing up all the facts.
What about domestic violence?
An estimated 2.3 million adults aged 16 to 74 years experienced domestic abuse in the 2020 (with 1.6 million of these being women). But what effect does this have on division of assets in divorce?
Unfortunately, the impact of domestic violence has little to no impact on the financial outcome of a divorce and in some extreme cases, the abused party may have to pay spousal support (if the higher earner). The BBC Sounds series, Money Box, discussed this in detail with one caller being advised that she may still have to share half her pension with her partner, even though he refuses to pay for bills and has domestically abused her.
The most important thing is to protect the victim’s safety and if a party is suffering domestic violence they can take an urgent step to remove the aggressor from the house:
- Non-Molestation order: This is a special injunction that aims to prevent a partner or former partner from harming a victim or their children from domestic violence. This can include actual or threat of physical violence, any form of harassment or intimidation, as well as psychological abuse. These can be made urgently, and if broken the aggressor can be arrested.
Another tip would be to contact any involved banks/other financial institutions and make them aware of the situation, especially if there is any evidence of coercive control or financial abuse. They may be able to help with allowing only one party access to the joint account to prevent. Finally, there may also be legal aid available for victims of domestic abuse seeking a divorce.
For all the ladies out there, considering the serious step of initiating a divorce, it’s important to always get independent legal advice before proceeding. But here are a few top tips to bear in mind:
- Don’t forget to apply for a financial order. This is separate from the divorce paperwork which states you are legally divorced.
- Begin cataloguing all assets from both parties whether shared or separate. Make a grid including values of assets being sure to include pensions, investments, savings, cars etc… Calculate the net total.
- Both parties can claim against each other for spousal maintenance, even if you’re the main breadwinner. Other factors are taken into account here e.g. primary caregiver etc…
- There are NO interim orders given for the sale of property until the divorce is finalised (except in very exceptional cases). If a final decision is made to divorce, it is best to start proceedings ASAP in order to sell the property.
*ONS Statistics: Women were more likely to be furloughed, and to spend significantly less time working from home, and more time on unpaid household work and childcare.
**Before couples can ask the court to determine division, they must attend a meeting about mediation, except in certain cases (if there’s been domestic abuse, for example)