What am I entitled to if I divorce my husband?
November 2021 | Martin Fuller
In respect of financial matters arising out of a divorce, you are entitled to ask the court to consider several factors relating to your circumstances and your contributions during the marriage and future contributions to the family; for example, by continuing to care for the children of the family after the marriage has been dissolved.
It is established law that when the court is considering the factors set out below, that there is absolutely no place for discrimination between husband and wife. The courts approach to each case must be based on gender equality. The division of labour between the parties should not prejudice or advantage either party, when considering their contributions to the welfare of the family between the breadwinner and the homemaker.
There is much case law on the principles that the court must follow to do justice to each party. This can be narrowed down to three distributive principles: needs, compensation and sharing, determined by the courts obligation to be fair to each, and as such each party is entitled to expect an equal share of the family assets unless there is good reason to provide one party with a larger share. Equality is therefore a guide and not a rule.
The sharing principle would generally be applied when the marital partnership ends unless a spouse’s needs dictate, or they are entitled to compensation because of a contribution generated disadvantage. An unequal share of the matrimonial capital may be awarded where the homemaker or lower income earner has a continuing need and a limited capacity to increase their income independently. If it can be shown that the entirety of the matrimonial assets has their origins from money brought in by one spouse, then fairness might require a departure from the sharing principle.
The concept of ‘compensation’ may persuade the court to depart from the sharing principle not just to meet the needs of the receiving party but to compensate a party to the marriage if they put their career on hold to become the homemaker and this has led them to suffer future financial disadvantage if the marriage ends. However, care must be taken not to double count under this head.
For the court to discharge its duties in respect of the principles above there are several factors under Matrimonial Causes Act 1973 section 25(2) which must be considered. Before undertaking this task, the court must be satisfied it has or has sought all relevant information required to discharge the duty to provide a fair outcome.
Income, earning capacity, property and other financial resources
This also includes any future increase in earning capacity that it is reasonable for the court to expect a spouse to take steps to achieve. This places a positive duty on the financially dependent spouse to take steps towards self-sufficiency, albeit this is a rebuttable presumption.
The primary task of the courts under this heading is to determine what is and what is not matrimonial property. Non matrimonial property is property brought into the marriage by one spouse by way of inheritance, or gift or may have been obtained post-separation. The cut-off date for defining matrimonial property is usually when mutual support ends. This may be easy to determine for example at when cohabitation ends.
It may also be appropriate to add back a sum into the assets if a spouse has without regard to the other depleted the matrimonial assets recklessly to the disadvantage of the other spouse.
Other financial resources will include monies owed, trust funds and a family company and pensions.
Financial Needs and Obligations and Responsibilities
The needs of the parties’ trumps everything and is a question of fact for the court to determine. The continuing care of the children of the family is the responsibility of both parties and if one party is to remain the primary carer this may lead to a relationship generated disadvantage which may well justify the court departing from the sharing principle, by awarding the primary carer a larger share of the family assets as that party gave up work or reduced their hours to look after the children.
The need for the parties to be housed is often the dominate need although there is no requirement that both parties have equality in housing needs. It may be that because resources are tight the needs of one party must wait for their ‘share’ until the children have been brought up for the children of the family need to be securely housed during their minority.
The standard of living enjoyed by the family
The lifestyle enjoyed by the parties before separation is something the court will consider when taking into account the future standard of living the parties are likely to experience after breakdown. Where there is sufficient money available the court is likely to seek to ensure that the standard of living enjoyed during the marriage can be maintained following separation.
The age of the parties and the duration of the marriage.
The sharing principle applies to a marriage regardless of its duration. The shorter the marriage the more likely it is that non-matrimonial property will be excluded from the award. Conversely, pre-acquired non-matrimonial property will start to merge with the matrimonial property over time. It will be said to have ‘mingled’ with matrimonial property thereby losing its status as non-matrimonial property. Finally, the younger the parties and the shorter the marriage the more likely the court will expect the parties to take steps to become financially independent of each other within a tighter time frame, subject to the needs criteria above.
Any physical or mental disability
This will be relevant based on the circumstances of the case. A disability may impact upon one party’s needs and/or earning capacity which could affect the overall award made by the court.
Contributions which each of the parties has made or likely to make to the welfare of the family.
The contributions to family are to be considered, but care must be taken not to discriminate against the homemaker. The court will discourage a detailed forensic accounting exercise to show who contributed what to the marriage. Where one party can demonstrate that their pure genius is responsible for a ‘stellar’ or ‘special’ contribution then they may persuade the court to depart from the sharing principle. A ‘stellar’ contribution cannot be satisfied just because one party has amassed a high net worth.
Conduct
Misconduct is generally not considered by the court in its approach to deciding the appropriate distribution of the matrimonial assets. Conduct will be taken into account if it is unfair not to do so, this is a high bar to reach. The most common misconduct to be taken into account by the court is termed ‘litigation conduct’ whereby one party fails to co-operate with the court process, either by delay or failing to disclose relevant information. This is usually dealt with by way ordering the offending party to pay the costs of the other. On occasions the court may decide to draw an ‘adverse inference and provide the innocent party with an uplift to reflect the non-disclosure.
How can Fullers help?
We can help you to reach a fair agreement with your partner, and/or if an agreement has been reached, we can carry out the necessary steps on your behalf to have the order approved by the court. Contact us on 01234 343 134 or fill in the contact form below, for a no-obligations chat.
