Solicitor, Megan Mahesan, looks at what to expect when dividing assets and liabilities upon separation and divorce.
Dealing with the financial aspects of your separation, including deciding how the assets of a marriage should be spilt, is undoubtedly one of the hardest parts of separating. It may be the case that there is a family home to be dealt with, debts and loans to be paid off, inheritance monies to be considered and more. Furthermore, you and your spouse may have been in a relationship for a significant period of time meaning your assets and liabilities have been intermingled, and you may not even be certain of the extent of your assets.
The process of reaching a financial settlement can inevitably be an emotional and sometimes acrimonious one. It is important therefore to know your legal rights, ensuring that you and your spouse can reach a final and fair financial settlement.
Firstly, it is important to note that although unmarried cohabiting relationships may be comparable in many ways to that of a married couple, their rights upon separation are very different. Find out more information in respect of the law relating to unmarried couples who are separating here.
Ending financial ties
Contrary to common belief, a divorce does not end financial ties between you and your spouse. In this regard, it is imperative that any agreement you and your spouse reach in respect of your financial separation is finalised by way of a Court Order, Consent Order or Deed of Separation.
A Court Order (which can be agreed and then known as a Consent order) is the only way to dismiss any financial claims either of you may have against the other. Without an order from the Court any settlement reached is not final, and both spouses may still retain the ability to make a financial claim against the other, even after they have divorced.
What is a fair financial separation?
There is a general belief that on divorce all assets will be divided equally. This is indeed a guiding principle of English Family Law, however beware a 50/50 spilt of assets will not always be the outcome!
If a spouse makes an application for Financial Remedy Proceedings, and the Court is asked to make a determination as to the correct financial settlement, a Court will not simply consider an equal division of the assets, but are required to take a number of factors into consideration. These factors are set out in Section 25 of the Matrimonial Causes Act 1973, are in summary as follows:
- The capital and income resources available to each spouse
- Each spouse’s needs, taking into account
- their standard of living
- their ages and the length of the marriage
- any disabilities.
3. Additional factors, such as:
- the contributions each party to the marriage made
- the conduct of each party (this will only be considered in exceptional cases)
- any benefit either party will lose as a result of the divorce (such as a pension)
As set out at point 1 and 2 above, the Court will begin by considering the available assets and the needs of both parties. The overarching aim of the Court is to achieve fairness. The Court will consider all the circumstances of the case and will give first consideration to the welfare of any children of the family under the age of 18.
Given the wide range of factors to be considered the outcome of cases are always fact specific, however in very general terms:
- Where an equal division of matrimonial assets can adequately provide for the capital and income needs of both spouses, this is likely to be the appropriate financial outcome.
- Where an equal division of assets will not meet the needs of the parties, then each party’s needs are likely to determine how the assets should be divided. For example, quite often the main issue which determines a case is each party’s housing needs. Upon considering each party’s needs and the assets available a Court may well consider that it would be fair to award one party more than 50% of the matrimonial assets.
English Family Law requires the Court to take into account all the resources available to each party. This will therefore include ‘non-matrimonial assets’. Non-matrimonial assets may be assets acquired prior to the marriage, or during the marriage by way of gifts or inheritance. In cases where an equal division of assets cannot meet the parties' needs, a Court is likely to take into consideration non-matrimonial assets when deciding on a fair settlement, and make a decision accordingly.
Key pieces of advice for readers looking to reach a financial settlement:
Ensure your agreement is final
As set out above, it is important to ensure that your financial separation severs all financial ties between you and your spouse.
Collate your financial information
In order to be able to establish a fair financial settlement, full financial disclosure from both spouses is required. Obtaining all the necessary information can take time, so it is helpful to be organised and request this information in good time. For example, it will be necessary to obtain bank statements, credit card statements, pension transfer values, house valuations, company accounts, P60s etc.
Work out your capital and income needs
As set out above, in many cases the financial settlement will be determined by each party’s needs. As such, it is necessary to have a clear understanding of your capital and income needs. This will include establishing how much it would cost to suitably house yourself and what outgoings you will have so you know how much money you will need to live on.
Check the ownership of the family home
If you and your spouse own the family home, then it will be necessary to consider the type of ownership. Most married couples own their property jointly as joint tenants. This means on the death of the first spouse, the property automatically passes to the survivor irrespective of the terms of the deceased’s will. If you do not wish for this to happen then you will need to sever the joint tenancy. Alternatively, if your spouse is the sole owner of the property, it is important to protect your right to occupy the family home by registering a Matrimonial Homes Right notice.
Draw up a will
Whilst you remain married, in the absence of a valid will, your spouse will receive a significant proportion of your estate in the event of your death. You may therefore wish to draw up a new will which reflects your current wishes. For further advice on preparing or amending your will please contact a member of our Wills, Tax and Estate Administration team.
Seek legal advice on early on
As a team, we cannot emphasise enough the value of receiving early professional advice when considering your financial separation. To encourage our clients to seek early advice, we always offer a one hour fixed fee initial interview with an experienced family law specialist at a discount of at least 40%. This fee also includes follow up written advice after the meeting.
Our experience has shown that our clients often need much longer than 30 minutes for that first initial advice from a family solicitor so clients can consider their options going forward.
To make an appointment, please contact a member of our Family Law team who will be happy to help.