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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, one of our bright family solicitors, Louisa Knight, outlines what can be considered.
Who gets what in a divorce?
For a marriage that is 15 years or more, the starting point for the Court is why should there not be an equal split of the assets.
For marriages of less than 15 years, the starting point is that each party should walk away with what they took into the marriage.
However, the factors set out below may slide this scale and alter those positions.
What can be claimed for in divorce?
When a couple are separating, either party can apply for a financial order. The orders available to the parties are:
- Spousal maintenance
- Lump sum
- Property adjustment orders (altering the ownership of property)
- Pension sharing orders
It is worth noting that petitioning for divorce on the basis of adultery or unreasonable behaviour will have no effect on any financial settlement. In very limited circumstances, behaviour of one of the parties can be taken into account but it must be extreme.
You can read my colleague Simon Immins' article on unreasonable behaviour as grounds for divorce here.
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 in 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 will 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 husband and wife 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 husband and wife.
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 husband and wife, 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 neutral third party will assist in negotiations and discussions regarding how the finances should be sorted and the assets split.
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
At Frettens, we offer a free initial appointment for all new clients. This usually takes place over a coffee with one of our bright lawyers at our modern, conveniently located offices, but can also be over the phone or video call.
If you’d like to speak with one of our bright, friendly team, you can fill in the form on this page or give us a call on 01202 499 255.
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