It is not uncommon for one party to have left dealing with money during the marriage to their other half. One party may have been the breadwinner and the other the home maker. English and Welsh law recognises that the contribution made by the person who has not been the breadwinner can be equally as valuable as one made by the person whose job it was to provide financially for the family. Neither party is supposed to be discriminated against because of the roles they adopted in the marriage. So are assets split equally on divorce?
This means that, when a marriage comes to an end, you are entitled to ask for a share of the assets built up during it. This is the case even if the assets are not held in your name. They will form part of the financial resources that will be divided between you.
Each of you can claim for financial provision to be made for you from the property and assets. For example, the law gives the court the power to order that property should be transferred to one of you, or that it should be sold and the proceeds paid out in whatever way is fair. It also has the power to split pensions and to require one party to pay maintenance to the other, amongst other powers.
However, every marriage is different. This means that there is no fixed formula for deciding who gets what in divorce. It is normally a question of negotiation. A financial settlement in a divorce must be “fair” in the eyes of the court. To decide what is fair, various factors must be weighed into the balance, such as:
- the welfare of any children under 18;
- what assets you each have; can access or may have in the foreseeable future (whether they are in sole or joint names);
- what you both earn and could earn;
- what your expenditure is;
- how old you both are;
- your state of health;
- how long you have been married;
- what you each need to house yourself and pay for everything you need to;
- whether you had a prenup and, if so what it said and whether it was fair.
Assets
The starting point is that the assets you have built up during the marriage, as well as the house you occupied as the family home, should be shared equally. This starting point is, however, often departed from and an unequal share of the assets happens. This is because simply dividing the assets built up in the marriage might produce an unfair outcome to one party. The priority tends to be to ensure that the parties and their children have a roof over their heads and enough money to live on, as far as is possible.
Assets that are not built up during your marriage might be treated differently. This is because they have come from an external source, not by your joint efforts. For example, an inheritance, or a gift, or some other asset that a party owned before the marriage might not be shared.
The starting point for these types of assets is that they should be put to one side and not taken account of in the split of assets. However, very often these assets do need to be looked at to ensure that the settlement is fair. If they have increased in value during the marriage, this increase in value can be shared even if the underlying assets aren’t.
The source of these assets and how they have been used might be very relevant to how they are treated. If they have been paid into a joint account and used in some way for example, then this might also affect the starting point.
What is a fair outcome?
Deciding what is a fair outcome is an art, not a science because of the lack of a fixed formula. Divorce tends to be a once in a lifetime event, so people tend to have little to no experience of what a fair outcome is likely to be. For this reason, it is vital that you get legal advice from a specialist solicitor. They can check that your spouse’s financial resources are fully investigated.
One party might also try to hide assets or use them so that there are fewer assets to divide between you. In addition, there can be different ways to value assets which can produce markedly different results. A specialist solicitor can check that the assets have been valued fairly and that your position is protected against them being hidden or used.
Most importantly, an expert solicitor will have far more experience than you in divorce cases. They will be able to advise you on what they think a fair outcome is likely to be. This will ensure that you do not make any mistakes which could otherwise cost you a lot of stress and money.
Postscript. Additional reading material is contained in a number of books explaining the law to people going through a divorce or separation. There is a range in our specialist shop. We have links to a number of organisations and charities who offer additional advice and support on these pages. If you are considering looking for alternatives to going to family court, these pages have some useufl material to read through.
Andrew Meehan contributed to ‘Separation With Children 101′, 3rd edition, (Bath Publishing, 2023)
