Who gets what in a divorce is, understandably, one of the first things people will consider if their marriage has come to an end. The outcome can make a huge difference in your financial security and quality of life post-marriage, so it makes sense that this is a key concern. Knowing what you are entitled to, however, is not always straightforward.
In this blog, we cover who gets what in divorce, including what factors will be looked at when making this decision. We also look at some of the key assets people might be concerned about, such as the family home, pensions and business assets. Additionally, we discuss the concept of spousal maintenance and what approach you can take to achieve a fair divorce settlement.
It should be noted that this blog is not intended as legal advice and is for educational purposes only. Should you wish to discuss your specific situation, our divorce and separation solicitors will be happy to answer any queries you may have.
For expert help with divorce rights for women, please call one of our offices in Banbury, Bicester and Rugby, or simply fill out our enquiry form and we’ll get back to you as soon as possible.
Who gets what in divorce?
A common belief is that your combined assets will be split cleanly down the middle in divorce, with each spouse getting half. While this is the starting point under English law, there are actually a lot of different factors that will need to be considered, so a 50:50 split should not be assumed. The average percentage split in divorce is not necessarily a good guide as it may not apply to your unique circumstances.
In the eyes of the law, the factors that can influence what is considered a fair divorce settlement include:
- The income, assets, debts and liabilities of each spouse
- The earning capacity of each spouse (if this is more than they are currently earning)
- Each spouse’s ‘reasonable needs’
- The needs of any children
- The standard of living enjoyed by the couple during their marriage
- What contributions each spouse made to the marriage (both financial and non-financial)
- The length of the marriage
- Any pre- or post-nuptial agreement that was in place
Most divorce settlements are agreed privately, meaning you can essentially split your assets however you like. That said, the above factors reflect what a court would look at if required to decide on the division of assets, so this is worth bearing in mind when thinking about what a fair settlement looks like.
Getting fair divorce settlements is not always straightforward, so having the right expert team in your corner can be very valuable. If you need help with financial arrangements in divorce, our seasoned professionals will be happy to support you.
Does it matter who wants the divorce or what the reason is?
People sometimes believe that if their husband wants a divorce or the reason for the divorce is something like infidelity, then this might mean they can get a better settlement. Legally, this is not true as your entitlement in a divorce has nothing to do with who wants the divorce or what the reason is.
If your husband is keen for a quick divorce or feels guilty about their conduct, then this might influence what they are willing to agree to, but it does not in any way change your respective legal positions with regard to financial entitlements.
The family home
What happens to the family home tends to be one of the top concerns during divorce. When it comes to your house, your rights will depend on your circumstances.
If both spouses’ names are on the title deeds, they will each be entitled to a share of the property and this would be assumed to be a 50:50 split unless there is a legal agreement in place that specifies otherwise. Even if you have contributed unequal amounts to the deposit, mortgage and other costs, this would not normally affect your entitlement to half the property unless, again, you have a written agreement that states otherwise.
If your name is not on the title deeds, this can make things slightly more challenging, but will not necessarily prevent you from claiming a share of the property.
What a property settlement in divorce looks like will vary from case to case, but there are a few common options. Firstly, you might sell the property and then divide the proceeds between you. Secondly, one of you might keep the property in exchange for giving up your right to a share of other assets, such as your spouse’s pension. Alternative options include a Mesher Order, where one spouse stays in the property until a set event occurs (such as all of the family’s children reaching the age of 18) at which point the property would be sold.
Pensions
Pensions are often the second most valuable asset a couple has, after the family home, but many people do not immediately think of them when considering the division of assets.
The value of a pension pot will normally need to be considered as part of the marital assets and should, therefore, be factored into any divorce settlement. If a pension income is already being drawn, this may also need to be considered.
There are three basic approaches you can take to dealing with pensions in divorce, although only two of these are commonly used in practice.
First, you can use ‘pension sharing’, which means part of one spouse’s pension pot is taken out and put into a separate pension for the other spouse. Secondly, you can use ‘pension offsetting’, which means the one spouse receives a bigger share of other assets in exchange for relinquishing their rights to the other spouse’s pension. These are the two commonly used options that may be suitable depending on the situation.
Finally, there is the rarely used option of ‘pension earmarking’, which means that part of the pension income will be paid to the spouse with less or no pension on an ongoing basis. The reason this is rarely used is that it means there is an ongoing financial link between the spouses, which is generally not desirable.
Savings and investments
Savings and investments may need to be considered as part of your divorce settlement if they are deemed to be marital assets. Joint savings and investments will generally be considered marital assets, while individual savings and investments may possibly be considered marital assets, depending on the situation.
It is always sensible to get expert advice at an early stage to clarify what is and is not likely to be considered a marital asset as this can help to avoid any confusion and minimise the risk of disputes.
Business assets
Business assets may be considered marital assets, meaning their value would potentially need to be factored into a divorce settlement. Exactly how these should be dealt with will depend on the situation, but a common approach is for their value to be offset against that of other assets, such as the family home.
Cars and other high-value personal assets
Cars and other personal assets of any significant value should also be considered as part of your settlement. Even where the asset itself is not worth much, it may have sentimental value, so could become a source of dispute if the right approach is not taken.
If there are any specific individual assets you are concerned about, it is sensible to discuss these with your divorce team as soon as possible.
The right to spousal maintenance in divorce
There is no automatic entitlement in divorce to spousal maintenance, but it may be applicable in some circumstances. You may be able to claim spousal maintenance if you can show that you would not be able to meet your reasonable needs using your own income and other resources and also that your former spouse has the financial means to provide the extra support you need.
Spousal maintenance can either be agreed privately between the divorcing couple or you can apply to a court to make a decision about whether you are entitled to spousal maintenance.
How to get a fair settlement in divorce
There are two basic approaches you can take to work out the division of finances in divorce – either you can make a voluntary agreement with your spouse or you can apply to a court for a Financial Order, which means the court would decide what is a fair split of your assets.
In the overwhelming majority of cases, it will be possible to agree a reasonable settlement voluntarily. This is normally done either by straightforward negotiations between the spouses with the support of their lawyers or through alternative dispute resolution.
The most common method of alternative dispute resolution used for divorce settlements is mediation, which involves the spouses working with a trained, neutral mediator to agree a settlement. The mediator’s role is to advise on points of law, defuse potential sources of tension and keep the process productive. Any agreement you reach would be recorded in a ‘memorandum of understanding’.
Other alternative dispute resolution approaches include collaborative law, arbitration and private financial dispute resolution (FDR), all of which have their advantages and may be suitable for different scenarios.
One thing to note about reaching a voluntary settlement is that anything you agree will not be automatically legally binding. It is therefore recommended that you apply to a court for a Consent Order, which would make the terms binding on both parties. You should also secure a Clean Break Order from the court, which prevents either spouse from making a claim against the other’s assets in future.
If you do need to apply to a court for a Financial Order, then each spouse will need to present their case for what they think is a fair division of assets. It is a good idea to work with a divorce lawyer with experience in these proceedings to make sure your case is prepared effectively and that you have the best possible representation in court.
Get expert divorce advice for women in Banbury, Bicester and Rugby
If you would like to speak to a solicitor with expertise in women’s rights in divorce, please get in touch with a member of our team. We can also assist with any other questions or concerns you may have in relation to how to divorce your husband.
We have offices in Banbury, Bicester and Rugby working with clients across Coventry and Warwickshire, the West Midlands, Oxfordshire and nationwide.
Comments