Divorce is a very stressful time in most people’s lives. There are a huge number of issues that need to be dealt with and the parties are often facing emotional turmoil and huge change.
What are my rights in a divorce?
There is perhaps a misconception that women’s and men’s rights in divorce are different. However, this is not correct, the very simple answer is that both the husband and the wife have the exact same rights. Where the misconception arises is often due to the law that is applicable to a person’s case.
Under the Matrimonial Causes Act 1973, married couples have the following financial claims against each other:
- Claims for periodical payments
- Claims for lump sums
- Claims against property
- Claims against pensions
Both parties have the right to pursue the above financial claims and generally such claims remain open indefinitely until they are resolved either by agreement or, if necessary, by a court decision. The claims only come to an end when a final financial order is has been made and sealed by the court, with the inclusion of a clean break clause, which formally severs all financial ties between the parties
Can one party get everything in a divorce?
Every case is different, but the court will usually begin with what is known as the sharing principle. This means that the assets built up during the marriage are generally divided equally as a reflection of the marriage being a joint effort. The court recognises all contributions, whether financial or non-financial. That includes the role of the ‘homemaker’, such as the partner who may have taken a step back from work to care for the family, as well as the partner who took on the role of earning and providing financial support.
With the sharing principle established, the Court will then look at other factors which may require a departure from equality in the interest of fairness. These are set in S25 of the Matrimonial Causes Act 1973:
- the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
- the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- 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 of either of the parties to the marriage;
- 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;
- in the case of proceedings for divorce or nullity of marriage, 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.
When dealing with financial settlements, a party’s needs, especially where children are involved, will usually take priority over an equal split of the assets. If one person has a genuine financial need that is greater than the others, the court will often adjust the outcome to reflect that. This is often referred to as a ‘departure form the equality principle’ and is particularly common in cases where the available resources are limited and it is not possible to meet both parties’ needs in full.
There can sometimes be a perception that one person, often the partner who has taken on the role of homemaker and therefore is generally more economically disadvantaged than the other, receives an unfair share of the matrimonial pot. This tends to arise in needs-based cases, where the financially weaker party is awarded more to ensure basic needs are met. The court is not aiming for equal division in these situations but instead focuses on what is fair, taking into account each party’s circumstances (for example their earning capacity, mortgage raising capacity and all of the other section 25 factors set out above) as well as responsibilities, including the care of any children.
Let’s take a very basic example, when the money available to the parties comprises a family home with a mortgage and where one party has taken the roll of home maker and the other has a greater income, with some modest pension provision.
Divorce and property rights
If there is insufficient equity in the family home to rehouse both parties with an equal sharing of the equity, the Court will need to consider how to approach housing both parties.
So here the Court will need to look at the resources available to both parties. The party who has focused on supporting the family financially may have a higher mortgage raising capacity and is therefore able to borrow more, requiring a smaller deposit to rehouse. This may allow a greater share of the equity to be awarded to the other party. The Court will wish to ensure that any children are adequately housed and if they are to live predominantly one party, there may be a case to suggest they have a greater need for housing (although of course the other party can argue such a need as well if the children are to live with them too).
So fairness may dictate a departure from equal sharing in this instance.
Divorce and maintenance payments
The fact that one party has not been able to progress their own career to the same extent as the other because of the matrimonial decision to raise a family may mean that person is unable to meet their monthly expenditure (known as income needs). This is when claims such as spousal maintenance can be considered. Spousal Maintenance is based on a party’s need. So if one party needs money, and the other party is in a position to give money, therein lies the case of spousal maintenance.
independence. ‘Joint lives’ maintenance orders tend to be much rarer now. Therefore, a party receiving spousal maintenance will likely see the Court impose a term, setting out when maintenance payments are to conclude (which can often be when the children turn 18 but will generally be determined on the facts of the case).
The other type of maintenance that party can receive is child maintenance. This where the non-resident parent, pays the resident parent a sum of money, the amount payable is decided by the Government and dealt with through the Child Maintenance Service. It is based on the number of nights contact and the income of the paying party. There is a calculator online, on the Gov.uk website, which provides an estimation of what child maintenance would be payable by the non-resident parent. Child Maintenance is a statutory obligation.
Pension rights after divorce
If there has been a significant departure from equality in respect of the family home, for example one party receiving a greater portion of the net proceeds from its sale, the court may seek to balance this by adjusting how pensions are divided. In other words, the court might offset that difference by working to equalise the pensions accumulated during the marriage to achieve a fair outcome.
It is important to remember, that this is just one example of how pensions might be dealt with. Every case is different, and the court will consider the full financial picture before deciding what is fair. The approach taken will always depend on the specific facts and circumstances of each individual case.
Who gets what in a divorce settlement?
This is a hard question to answer, without full and frank financial disclosure from both parties. Every case will turn on its own facts and everything will depend on how the parties have conducted the marriage. The outset of every financial negotiation is the disclosure of financial information (normally by way of Form E Financial Statements). Once there is a solid understanding of the finances, proper consideration can be given to appropriate settlement parameters.
Rayden Solicitors are family law specialists who can assist in relation to all aspects of family law. If you require legal advice about any of the issues raised in this blog, please do not hesitate to contact us.
