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 wives and husbands have different rights when it comes to divorce. 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 claims and indeed generally such claims are open indefinitely until they are dealt with by the Court (hopefully by agreement, but by the Court’s determination if not), subject to some specific situations.
Can one party get everything in a divorce?
Every case is different but generally the Court applies a sharing principle to start with, an equalisation of the matrimonial endeavour with all contributions being recognised. So the efforts of the ‘home maker’ (i.e. the party who has stepped back from work to focus on the family) or the other party who has adopted the role of predominantly supporting the family financially.
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.
A party’s need will always trump sharing. If one party has a genuine need for more money than the other party that will normally be a determining factor in most modest cases.
There can be a perception that one party (normally the one who has adopted the role of home maker and who is therefore generally more economically disadvantaged than the other) receives an unfair share of the money. This normally arises in what are known as ‘needs based’ cases (i.e. when there is insufficient money to meet both parties needs).
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). 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.
That said, the Court has a duty to consider a ‘clean break’, with parties working towards 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 (which can often be when the children turns 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 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. 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 may find the court will seek to provide a level of fairness by offsetting that departure when looking at pensions. Parties may see the Court otherwise seeking to equalise the pensions accrued during the marriage.
It is important to remember that the above is an example only and each case will depend on its own facts.
Who gets what in a divorce settlement?
This is a hard question to answer. 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 Statement). 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.