• It is straightforward isn’t it – everything is divided 50/50 between us?
  • I think I should be entitled to more because I am responsible for the children.
  • Are the children taken into account?
Resolving the financial issues which arise out of a separation/divorce is a skilled and complex task.

There are two basic stages:

The first is called disclosure and involves each party providing the other with full and frank information about their financial circumstances. It may also be necessary to obtain reports from certain experts, such as a report by a Chartered Surveyor about the value of a property in the absence of the parties being able to agree how much it is worth.

Once all of this information is to hand, the second stage can then begin which is determining what the financial settlement should be. In this country, we do not have rigid rules which apply to the division of income and assets on divorce and neither do we have a formulaic approach. Every divorce is different and hence the law is flexible as it has to adapt to each case and the parties individual circumstances, including those of their children.

It follows that there is not an automatic entitlement to an equal share of the assets although this will be appropriate in some cases.

There is a range of possible outcomes which can be tailored to suit the various needs of the two households looking to the future. One of overriding principles is that of ‘fairness’, which means that the terms of any settlement must be fair to both parties.

With a long marriage (usually 20 years or above, although shorter if there are children), the starting point will be an equal division of the assets. It is then necessary to examine whether there are any reasons to depart from what is known as equality by referring to the individual circumstances of the case and the factors laid down in the legislation which deals with the distribution of income and assets on divorce.

1. The Factors that Apply When Determining the Division of Assets

  • So if it is not as straightforward as 50/50 how do the solicitors or judge decide matters.
  • Why is my solicitor asking me about details of all of my savings, the house and pension during the first interview?
  • I think my husband could enhance his income – can this be taken into account?
  • I am in a new relationship; surely my new partner’s house value has no bearing?
  • My wife does not work but she is well qualified to do so.
  • Why is my solicitor interested in my monthly income and expenditure?
  • I am much older than my spouse – does that mean I receive most of the available assets?
  • My son has always been privately educated before we separated. Can I expect this to continue?
  • This has been a long marriage and I have just been diagnosed with Parkinsons Disease. Will the court take my greater need into account?
  • I have worked all of my adult life and my wife enjoyed being at home with the children. Surely I get the majority of the assets?
  • I received all of my inheritance during the marriage and my husband is yet to receive his. Will my contribution to the matrimonial assets be considered?
  • My wife had the affair, and her conduct ended the marriage. I presume that I will be compensated for this?
  • My husband says that we should ignore pensions and his death in service benefits?
As rigid rules do not apply, there are broad and flexible factors that need to be taken into account when considering the division of income and assets in every divorce. Those principles include, but are not limited to, the following and are often referred to as the section 25 Criteria in accordance with s.25 of the Matrimonial Causes Act 1973 (as amended):-

  • The Welfare of the Children – Where there are children who are under the age of 18, first consideration must be given to their welfare. In practical terms, this means ensuring that they and their main carer are suitably housed and that the income going into that household is sufficient to meet their needs. However, this does not mean that the needs of the other parent will be overlooked or ignored. The outcome will seek to balance the financial needs that both parents have (housing, food, clothing and holidays etc) with the available resources (assets less liabilities, income and pensions) whilst at the same time making proper arrangements for the children’s financial needs.
  • The Available Capital, Income and other Resources – before any family law solicitor can properly advise upon the realistic division of assets on divorce, the full extent of those assets needs to be identified and disclosed between the parties. The home and other assets need to be valued by the most appropriate and proportionate means. In the case of pensions, up to date valuations need to be obtained from the pension scheme.

    The solicitors will not only look at the income of both the husband and the wife but also their respective earning capacities. For example, if a one of the parties is not working, there may be an issue about how much they could potentially earn if they were to return to work. Alternatively, it may be argued that the one party could improve their earnings either immediately or at some time in the foreseeable future by means of working longer hours or securing promotion.

    Business assets will also need to be valued and trading accounts and tax returns examined.

    Financial support from parents may also be a relevant consideration, although can never be made obligatory upon them.

    Where either the husband or the wife is in a new relationship and is cohabiting, their new partner’s financial affairs may also be taken into account.

    It is also necessary to take into account any assets that one or other party is likely to have in the foreseeable future.
  • The Parties Financial Needs Obligations and Responsibilities – it is necessary to look at each of the parties needs in terms of both income and capital. Both parties will need a roof over their heads and this will be a particularly important need for the person with whom the children live. It will be necessary to establish the cost of suitable alternative accommodation for both and any ability of each to borrow by way of mortgage will need to be taken into account.

    In the assessment of future income needs; both will be required to provide details of their current and estimated outgoings and consideration will be given to what is reasonable and realistic.

  • The Parties Ages and Length of the Marriage – generally speaking, the longer the marriage, the larger the claims arising upon divorce. When looking at the length of the marriage, it is now usual to look at the date when any pre-marriage cohabitation started and the period generally ends when the husband and the wife separated, although there is a requirement to assess the value of the assets as at the date of any final hearing or intended settlement.

    Age is also an important consideration. It may be appropriate to impose a clean break where the couple are young and do not have any children. For older couples, different considerations will come into play such as appropriate provision on retirement. Age will, of course, affect the question of earning capacity and the ability to achieve an independent.

  • The Standard of Living Enjoyed Before the Breakdown of the Marriage – this is usually taken into account in the context of balancing the available assets and resources against the respective needs of the parties and their children. Where the parties concerned by debts, did they enjoy a surplus of funds? Ideally there is a desire to maintain their standard of living in so far as this is possible which can, in the majority of cases, be fairly difficult.
  • Any Physical or Mental Incapacity of the Parties – although not relevant in most divorces, the existence of a long term illness or disability can have a significant impact on the outcome of a case and can involve the preparation of reports by a GP, consultant or disability consultant.
  • The Parties Contributions – if one party has not worked during the marriage but has looked after the children and the home while the other has been the breadwinner, they are treated as having made equal contributions to the family.

    Contribution arguments can be relevant where either party had significant assets prior to the marriage or where significant assets have built up during the period of their separation. The introduction to the marriage of inherited assets or gifts of money from family members may also be viewed as a relevant contribution. Much depends upon the length of the marriage and the point at which the inheritance was received.
  • The Conduct of Either of the Parties – this is rarely taken into account in a divorce unless the conduct is ‘obvious and gross’ and it would be inequitable for the Court to disregard it. Such examples would be very serious cases of violence rendering one of the party’s unemployable or the wanton dissipation of funds
  • The Value to Each of the Parties of Any Benefit Which by Reason of the Divorce, that Party will Lose the Chance of Acquiring – the obvious example is pension rights and the Courts now have wide ranging power to order pension sharing.
  • I know what my wife and I are worth financially. Why does my solicitor want all of this evidenced by paperwork?
  • To reach a position where solutions can be proposed, both parties must set out details of their complete financial situation. As well as the house and savings this must include the values of any interests in companies and trusts, the capital values of any pensions and the parties’ respective incomes from all sources, on and offshore assets, contents and valuables.

  • My solicitor has handed me a document called a Form E. It is rather long. Do I really need to complete it?
  • This can be done either voluntarily, or where there are court proceedings, through a standard Financial Statement form (known as a Form E). In fact, the Family Law Protocol, which governs how family lawyers should behave, recommends use of the Form E as its layout provides an excellent means to summarise all the relevant criteria as set out above. The cases that prove to be the most expensive generally include allegations of non-disclosure or the undervaluing of assets, and the consequential costs of trying to extract full disclosure. Focusing on achieving full disclosure at the outset of the case will usually enable early progress to be made and the parties can save costs by gathering together as much of this information as possible and preparing the first draft of their Form E. Their solicitor will then go through and finalise this with them.

  • OK, we have sorted out the settlement. Now I want the judge to approve it. When can this happen?
  • The earliest any that any final financial Order can be made, by agreement or otherwise, is after the Decree Nisi has been pronounced or, in the case of a Civil Partnership, when a Conditional Dissolution Order has been obtained. In the absence of a clean break order dismissing claims, a Decree Absolute or Final Dissolution Order does not prevent either party from making subsequent financial applications although re-marriage may affect the applicant’s ability to do so.

2. The Powers of the Court on Divorce

  • My husband will not engage in the process of trying to settle things. What can a judge do to resolve our case?
  • I will not have enough to live on after our divorce. Is it worth having any monthly payments from my ex husband to help make ends meet?
  • I have heard that on a divorce husbands always have to pay lifelong maintenance.
  • My husband has gone and I want the house in my name. Is there anything that a judge can do, if my husband will not sign?
  • All of the savings accounts are in my husband’s sole name. I presume they are his and that there is nothing anyone can do to award some to me?
  • I would rather go to court than be involved with CSA as I hear that they are very good at recovering money.
  • My husband says that we just keep whatever pensions we each have. He says that I should have used the housekeeping to contribute to one of my own.
  • It might not be the Guinness family trust but I think my husband’s grandfather set aside some money for him. Can I make a claim?
Family Judges have various powers to make financial orders on divorce. In simple terms, a court can order the following:-

  • Spousal Periodical Payments (often referred to as maintenance Payments). A dependant spouse may be entitled to spousal periodical payments in addition to child maintenance and therefore the court can order one spouse to make such payments (usually monthly) to the other. Whether this is appropriate really depends upon the circumstances of the case and in particular, the parties’ respective incomes and reasonable needs. The court can order the payments to be made until one party dies, until the recipient’s remarriage or for a fixed period of time, such as when the children cease their education or to allow the recipient time to retrain. However, in many cases, spousal periodical payments may not be appropriate, in which case the court will order a ‘clean break’. Even where they are appropriate, spouses often prefer capital rather than relying on their former husband or wife to pay maintenance each month and so if there are sufficient funds it may be possible to capitalise periodical payments into a lump sum of money instead.
  • The Sale or Transfer of Property. The court can order the sale of all forms of property, although the most common is the family home. It can also make an order stating in what proportions the net proceeds of the sale should be divided.

    The court can also order property to be transferred from one person to the other either outright or subject to a charge (like a mortgage) in the favour of the other party. The amount or percentage of this charge is often subject to intense negotiations.
  • The Payment of Lump Sums. The court can order one person to pay to the other a lump sum or a series of lump sums from available capital. For example, the court could order the husband to transfer his interest in the matrimonial home to the wife in exchange for her paying him a lump sum of money. One party may also be ordered to pay the other a fixed lump sum instead of future monthly maintenance if there is sufficient capital for that party to ‘buy out’ their maintenance obligation (known as capitalisation as referred to above).
  • Child Maintenance. The court only has limited power to make orders in respect of child maintenance. Where a figure for child maintenance is agreed, the court can approve this and the amount will then be binding on the parties. However, once the order has been in force for twelve months either party may make an application to the CMEC (formerly the Child Support Agency / CSA) whose assessment will override the court child maintenance order.

    If there is a dispute over the level of child maintenance payable, then either parent needs to apply to the CMEC although many couples use the CMEC assessment and make payments voluntarily. The CMEC was partly established as it was becoming uneconomical for couples to litigate over child maintenance.
  • Pension Sharing. The court has had the power to order the division of pension policies, whether private money purchase, occupational final salary or even AVC schemes. With long marriages or where there are older couples involved, it may be preferable to achieve a pension sharing order which will result in equality of incomes on retirement based upon the pension provision accrued to the date of separation.

    When a pension sharing order is made a proportion of the transferor’s pension (known as the pension credit) is transferred into the name of the recipient who then becomes the holder of that part of the pension. It will either remain with the same organisation (known as an internal transfer) or it will need to be transferred to an outside pension provider (known as an external transfer) depending upon the rules of the transferor’s pension scheme. It is sometimes necessary to involve an actuary to advise on the pension options in a case.

  • Creation or Variation of Settlements - although this is quite uncommon, the court can vary family settlements/trusts if they are marital/nuptial settlements. The court can also create settlements in respect of family property, for example, ordering that the family home remains in joint names until, say, the youngest child reaches 18 at which point the property would then be sold and the proceeds divided as the court has determined.


At Blackdown Family Law Solicitors, we do our best to resolve cases by negotiation and avoid a courtroom final hearing.

The law in this area is fast moving and complex. John Turner, the Principal of Blackdown Family Law Solicitors, keeps up-to-date with all of the latest case law and developments through reading case law reports, attending lectures and seminars, using on-line resources and by studying for further professional qualifications. He is a highly skilled solicitor who has dealt with divorce on a daily basis for over 22 years.

He will advise you on the most cost effective and efficient way of proceeding with the divorce taking into account all of the circumstances of your case. He understands that divorce can be an emotional and a testing time for all those involved and is there to help shoulder the burden for you so that you can begin the process of rebuilding your life.

Fact Sheets and Further Information – (Please click on the relevant link below for more information).

1. Matrimonial Financial Litigation

Areas of Family Law Work
click on the relevant link below for more information