What Am I Entitled To In A Divorce Financial Settlement?
Reaching a fair agreement on how to separate your finances when you get divorced or end a civil partnership is an important step in the process. Having said that, understanding who should get what isn’t always straightforward because in family law there is no set rubric for what a fair financial settlement on divorce should look like.
This ambiguity is deliberate, because all families and their circumstances are different, therefore all financial settlements are different. So, how exactly do you decide on a financial settlement when getting divorced?
What Do The Courts Take Into Account When Deciding Financial Settlements?
While going to court to decide on financial settlements should be your very last resort, it's helpful to know what the Courts do consider when spouses can't agree.
The Court takes into account all relevant circumstances when deciding on financial settlements in a divorce. Some of these factors are detailed in Section 25 of the Matrimonial Causes Act 1973 and include:
Welfare of Children
The Family Court typically makes decisions that are in the best interests of children in any family case, including divorce.
With that, financial agreements should take into account child arrangements. For example, if it is agreed that a child or children are to primarily live with one parent, then the financial settlement may include how much the non-resident parent should contribute to the child’s living costs. Other costs that should be considered also include: school fees and childcare, the extra-curricular activities, school uniforms, and trips.
It’s important to detail who is responsible for paying what when it comes to children and financial settlements in order to avoid misunderstandings and disputes further down the line. It’s much better, and less stressful, for both parties and children.
The Court will also consider accommodation for dependent children. Sometimes the result of this will be an order for a deferred sale of the matrimonial home (Mesher Order), which means the Court decides the sale of a property can be postponed until children meet a certain age, or other conditions are met.
Financial Needs, Obligations and Responsibilities
The Court will also look at what each person needs financially to live their life comfortably, like rent or mortgage payments, food, bills, and other everyday living costs, as well as look at the responsibilities of each person, like taking care of the children or paying off debts.
It’s important to note that the Court will also consider financial needs, obligations and responsibilities that each person has both in the present or is likely to have in the foreseeable future. This can include benefits like company cars, phone bills, and pension payments, among other things.
When it comes to dividing money and assets in a divorce, the court looks at how much money each person is making in the present, what they might make in the future, matrimonial assets (including property), non-matrimonial assets and any other sources of money like savings and stocks.
Standard of Living Before Divorce
The court will also consider how the family was living before the marriage broke down and the couple decided to go their separate ways. This is because they want to make sure that both parties can continue to live somewhat like they used to after the divorce.
The aim in this is to make sure that neither party ends up in a tough financial situation following divorce. Instead, the settlement should be fair and go as far as possible in ensuring both people can maintain a similar lifestyle to what they were used to before the marriage broke down.
Age and Duration of the Marriage
You might say age is just a number, but the Family Court thinks age can affect a lot of things regarding financial settlements on divorce. For instance, if someone is older, their financial needs or health considerations might be different. On the other hand, people who are relatively younger often have more time ahead of them in their careers and can potentially get larger mortgages because of this.
Another consideration of the Court is how long the couple has been married. This is because, the longer a marriage is, the more likely the lives and finances of the couple will be intertwined.
Often, when a marriage is short and doesn’t involve children, the Court aims to get both people back to the financial situation they were in when they got married with a clean break settlement, which means both parties agree to move on without having to support each other financially in the future.
In contrast, if a couple have been married for many years and have children, it could be that one person took a break from their career to raise children and subsequently has less income and earning potential. The Court will take this into account to ensure that person isn’t unfairly disadvantaged in the financial settlement.
Physical or Mental Disabilities
Disabilities can have a big impact on a person’s ability to work, earn money, and take care of themselves. Therefore, the court wants to make sure that if someone has a disability, they have the support they need (financial or otherwise) following the end of the marriage.
Contributions To The Welfare of the Family
The Courts also recognise the efforts and contributions that each person in the marriage has made and will continue to make to take care of the family. This doesn’t just include working to earn money and pay the bills but also taking care of the home (cooking, cleaning, etc) and taking care of kids or elderly family members.
It is important that the contributions of both parties are valued and considered when making decisions about money and assets.
Value Of Lost Opportunities
When a marriage ends, sometimes one party might lose out on certain opportunities or benefits they could have had if the marriage continued. The court wants to know about these potential losses and what they're worth. For example, if one spouse supported the other’s education and now they won’t get to enjoy the benefits of that support due to separation, the court takes that into consideration and tries to make things fair.
The Behaviour Of Each Person
The Court might also take into account how each person acted while they were married. Did they treat each other well, or did they do things that hurt the other person? This could involve things like dishonesty, cruelty, or other harmful actions. Although this is very rare.
If the Court believes that one person’s behaviour was so bad that it wouldn’t be fair to ignore it, they might consider it when making financial decisions.
What Am I Entitled To In A Divorce Settlement?
There are no hard and fast rules when it comes to who is entitled to what in a divorce settlement. Rather, it should be decided on a case by case basis that takes into account a number of factors.
Ideally, divorcing couples should try and reach an agreement without getting the Court involved. This might be achieved through alternative dispute resolution methods such as family mediation or enlisting the help of a divorce solicitor who can advise you on what you’re entitled to and communicate settlement agreements to your ex-partner on your behalf.
Alternatively, a couple might decide a clean break order is the best way forwards if their financial situation is fairly straightforward and there are no children involved.
Generally financial settlements that are agreed in this way are quicker, more cost-efficient and a lot less stressful.
Should assets be divided 50/50 in a divorce?
Many people think that matrimonial assets are split 50/50 in a divorce, but this is a myth. That is not to say a 50/50 split isn’t the best course of action, as sometimes it is. But, equally, sometimes it isn’t.
When it comes to divorce, assets should be split in a way that is fair and equal and there are many factors that can influence this like child arrangements, future earnings and the relative needs of each person.
For example, a spouse who has sacrificed career progression and earning potential to look after the children of a marriage may be in a weaker position financially following the divorce. This needs to be taken into account when reaching a settlement and may mean a 50/50 split isn’t appropriate based on these circumstances.
What if I think my divorce settlement is unfair?
Divorce proceedings can be emotional and discussing finances can be tricky if both parties feel defensive or aggrieved. If you think a settlement is unfair, there are ways and means of dealing with it such as challenging the divorce settlement and filing a financial order.
This process can be difficult and the costs of a divorce can quickly add up. For that reason, it’s important to enlist the help of an experienced divorce lawyer if you haven’t already. They can help you decide if an appeal is worth it in the long run, or whether alternative dispute resolution might be a better way to come to an agreement.
Reaching an agreement when it comes to your financial settlement on divorce can be tricky, not to mention emotional. Above all in these situations, it’s important to consider the future, especially what your financial needs might be or how they might change.
While going to court might be unavoidable in the end, it’s important to explore all of your options with the goal of reaching a financial agreement with your ex-spouse quickly and as amicably as possible.
An experienced divorce lawyer can help you do that, from understanding what you’re entitled to to supporting you with the necessary paperwork to making your financial settlement legally binding with a consent order.
Lawhive’s experienced divorce solicitors can provide support and guidance on financial agreements and the divorce process on a fixed-fee basis. To get started, simply tell us about your case and get an instant quote from the best solicitor for your case.