What are my rights in a divorce?

Co-authored with Darcy Gee

Divorce can be an emotionally and legally complex process. Whilst the divorce process itself is relatively straightforward, it is the finances that are more complicated. Understanding your rights during this time can assist you to make informed decisions.

Property Rights

In England & Wales, there is no automatic 50/50 split of assets, and the court has broad discretion to decide how property should be divided, with the objective to achieve an outcome which ought to be “as fair as possible in all the circumstances.” The starting point is usually that assets accrued during a marriage (known as matrimonial assets) are divided 50/50 and the guiding principles applied are ‘’equal sharing’’, ‘’needs’’ and ‘’compensation’’. Where the needs of the parties cannot be met by an equal division of matrimonial assets, an unequal division of resources may be appropriate instead.

As a matter of practice, there is usually a two-stage process:

(i) computation i.e. what is in the “pot” for division and

(ii) distribution.

Assets are usually categorised as either matrimonial property or non-matrimonial property. Matrimonial property includes all property acquired during the marriage, such as the family home. Whereas non-matrimonial property usually includes:

(i) property owned before the marriage

(ii) property generated after separation or

(iii) received as personal gifts or inheritance though these may still be considered in certain cases, depending on whether they have been “mingled” with matrimonial assets.

Regardless of who owns the family home legally, the court can decide who remains in the family home or whether it is to be sold, often prioritising the needs of any children. If it is decided that the family home is sold, the proceeds are typically divided, with consideration of each party’s future housing needs, taking into account any mortgage borrowing capacity they may have. When looking at the division of assets such as property, the court will take into consideration Section 25 of the Matrimonial Causes Act 1973. Section 25 lists factors such as the length of the marriage, contributions (financial and non-financial), and each party’s needs which are a key factor in deciding the division of assets.

Financial Settlement

When you enter into the divorce process, you and your former spouse will need to reach a financial settlement which is incorporated into an order that is approved by the court in order to ensure that no further financial claims can be made against each other in the future. A financial settlement aims to achieve a fair outcome based on both parties’ circumstances. Whilst there is a plethora of case law, every case is fact specific. The standard process is that marital debts will be divided based on fairness. Non-marital debts typically remain with the individual who incurred them.

Pension Rights

Pensions are often considered a significant asset in divorce proceedings. There are multiple ways in which pensions can be dealt with. One way is by a pension sharing order, which allows one spouse to receive a share of the other’s pension, creating a separate pension pot. Another option is pension offsetting where instead of splitting pensions, one spouse may receive other assets (e.g., a larger share of property) to compensate for the pension value. Finally, there are pension attachment orders which is where pension benefits are directed to be paid to the ex-spouse when the pension-holder begins to draw their pension.

Rights Concerning Children

The welfare of children is the primary concern when parents are divorcing. Parents are encouraged to agree on arrangements amicably, but courts can step in when necessary. When it comes to deciding child arrangements, the court focuses on what is in the child’s best interests, including where they live and how much time they spend with each parent. Both parents generally retain the right to make significant decisions about the child’s education, healthcare, and welfare, known as parental responsibility.

The other key area when it comes to rights concerning children is Child Maintenance. The non-resident parent is usually required to pay child maintenance to the parent with primary care, calculated using government guidelines and based on income. A link to the Child Maintenance Calculator can be found here – https://www.gov.uk/calculate-child-maintenance

Steps to Protect Your Rights

• Seek Legal Advice: One of our expert family lawyers can help you through the process.
• Mediation: Before going to court, couples are required to consider non-court dispute resolution to resolve disputes over finances and children.
• Full Financial Disclosure: Ensure all assets, pensions, and debts are disclosed. Hiding assets can lead to severe legal consequences.
• Court Orders: Secure legally binding agreements on finances (e.g. consent orders) to prevent future claims.

Conclusion

Navigating divorce can feel overwhelming, but understanding your rights can help ensure a fair settlement. Whether dealing with property, pensions, other financial resources, or children, the key is to stay informed and seek professional advice. With the right support, you can move forward confidently into the next chapter of your life. Please contact us to discuss your own individual situation.

About

Lucy Naish is a Senior Associate Solicitor and Darcy Gee is a Paralegal in our Horsham Office.