What am I entitled to in a divorce?

When going through divorce proceedings, there will come a time when you and your spouse will need to work out which assets both of you will be taking from the separation. This can often be a stressful, emotional, and at times a hostile process. It is important you know your rights and what you are entitled to.

This blog will outline your legal rights and entitlements during a divorce. We will also clarify common misconceptions about the division of assets during divorce.

What assets are considered

To best understand this part of a divorce, it is helpful to think about what assets are considered. In England and Wales, the law splits assets into two categories: matrimonial assets and non-matrimonial assets.

Matrimonial Assets

Matrimonial assets are possessions or finances that you both have accrued over the period of your marriage. This can include assets such as:

• Property such as your family home

• Pensions

• Savings

• Stocks and shares

• Vehicles

• Furniture

• Debts
  

Non-matrimonial Assets

Non-matrimonial assets are possessions and financial assets that you collected prior to marriage, after separation or during the marriage by way of gifts, inheritance etc intended for one party only. They can include any of the marital assets listed above.

Non-matrimonial assets may still be included as part of a divorce settlement, particularly where they have been mingled with matrimonial assets or matrimonialised in another way.

What does a court consider when reviewing the division of assets?

The division of assets during a divorce follows the guidance set out in section 25 of the Matrimonial Causes Act 1973. The guidance looks at the following factors to ensure that the division meets the needs of the parties and any dependent children and is fair for all parties involved:

• Financial earnings and earning capacity of both parties

• Current and future needs and financial responsibilities and duties

• Standard of living prior to divorce

• Duration of the marriage and age of those involved

• Any disabilities of the parties

• Contributions of the parties of a financial and non-financial nature

• Conduct of the parties, but only in the most extreme cases, the value of any benefits that will be lost due to the marriage breakdown.
  

Business Assets

If you or your spouse owns a business, the financial settlement on divorce may involve the ownership and assets of that business. The precise treatment of business assets depends on factors such as the business structure, its operational methods, and whether it is jointly owned with third parties.

Spousal Maintenance

Spousal maintenance is when one of the parties to a divorce pays regular financial support to the other. The maintenance is usually paid if one party cannot financially support themselves or has insufficient income to meet their needs.

It is dependent on the financial situation of both parties and the Court would always prefer to have a clean break where possible. The length of the maintenance can vary. Some have it in place until their child finishes education, and in other cases, it could be for a couple of years whilst a party adjusts and tries to build up their own income.

Am I entitled to half of the assets during a divorce?

In short, no.

This is one of the most common questions and the biggest misconceptions surrounding divorce and the division of assets. A 50-50 split may serve as a starting point for negotiations. However, when you consider the factors mentioned above and your specific financial situation, the outcome may change.

We have a prenuptial agreement. Will it be honoured?

A prenuptial or postnuptial agreement is a document signed by both parties in a marriage or civil partnership. It explains what assets each person would receive if they separate or divorce.

These agreements can serve as a starting point for dividing assets and establishing financial arrangements. The courts are not legally bound by them but will often try and follow them if they are properly entered into and if the settlement it provides for meets the needs of the parties and any dependent children.

Both parties can dispute the terms of the agreement and point out how the circumstances have changed since the agreement was drafted.

What happens if we have debts whilst going through a divorce?

Any debts incurred during the marriage will be considered during the divorce settlement. This includes credit cards, mortgages, and other types of loans. It can be argued that debts are non-matrimonial and should not be taken into account when dividing the assets, but matrimonial assets would normally be dealt with as part of the financial settlement.

What happens to our pets during a divorce?

In England and Wales, pets are considered personal property, or chattels. This categorises them as a possession, such as furniture. You and your spouse will need to reach an agreement over who will take ownership of your pets or the Court can determine this.

For more information about pets and divorce, read our blog.

What is the role of a solicitor during the financial settlement?

Your divorce solicitor will help you establish what you are entitled to. They will negotiate with the other party and their solicitors to determine how assets should be divided. In cases where you are unable to speak with the other party, your solicitor will communicate on your behalf.

They will document all discussions that take place between the parties and ensure that a written agreement is drafted upon the conclusion of the settlement. Your solicitor will then draft it into a legal document and submit it to the Family Courts for approval and once approved it will become legally binding.

What happens to the family home during a divorce?

The family home is often one of the most valuable assets in a divorce. It will need to be considered whether one party can afford to retain the property short- or long-term, and, if not, whether the property may need to be sold and the proceeds divided.

Are pensions included in divorce settlements?

Yes. Pensions are usually treated as matrimonial assets, even if they are in one person’s sole name. The court can issue pension sharing orders or pension attachment orders. It can also offset the value of a pension against other assets, such as property or savings.  Pensions can be very valuable assets that should not be overlooked.

Does bad behaviour, such as adultery, affect financial settlements?

Conduct is a factor the court can take into account when considering divorce settlements; however, it will only be considered where it would be inequitable to disregard it. Usually, this is where the conduct has had a significant financial impact, such as gambling away family savings or assets. The focus will remain on what is fair and reasonable for both parties.

Get Expert Advice for Divorce in Leeds, Horsforth, and Huddersfield

At Holden Smith Law, our family law team is ready to support you if you are going through or considering a divorce. With over 20 years of experience, our family lawyers understand the emotional challenges that divorce can bring.

We have offices in Leeds, Huddersfield, Manchester, Horsforth, and Queensbury. We can and do support clients across England and Wales.

We offer all potential clients a confidential 30-minute free consultation with our team. They will advise you on the process and steps taken during a divorce and what you are entitled to.

To contact our team, please call one of our offices or complete the online enquiry form found on this page.