What am I entitled to if I divorce my husband?
We decided to write a blog on this question, as it is one we are often asked. In the interests of parity we will be writing a similar blog from the husband’s point of view – although the law surrounding this area is very much the same. Family law does not favour one gender over the other. Instead, it is all focused on fairness and needs. The short answer to the question “what am I entitled to if I divorce my husband?” is….it depends.
Family law is deliberately flexible – other than the one area that we explain below on child maintenance – there is no calculator that you can simply put your details in and be told an answer on what you should do. There are very few finites and it is possible to go to two separate solicitors with the same information and get two completely different answers. And they could both be right. Indeed, it is possible (in theory, you couldn’t do this in practise) that you could go to two different family courts with exactly the same information and same arguments and be given two very different outcomes.
To try to help and answer the question to this blog, we have looked at the factors that a court would take into consideration, when looking at your overall financial settlement.
It is important to understand that this blog does not constitute legal advice. A solicitor really needs to have a financial disclosure and full overview of the situation in order to give you tailored legal advice for your specific questions. But we hope by taking a look at the below information and then applying it to your own situation, we will help you move forwards with more confidence.
Who gets what in a divorce?
A court will use Section 25 of the Matrimonial Causes Act 1973 when looking at how what am I entitled to if I divorce my husband? Let’s take a look at them here:
- the income, earning capacity, property and other financial resource which each of the parties to the marriage has, or is likely to have in the foreseeable future. This includes 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.
This means the court will look at what you currently have and currently earn and also what you could reasonably expect to earn. For example, if you have spent the last 10 years raising your children, who are now in secondary school, the court may not expect you to return immediately to a job in the city paying £60,000. But it may expect you to take a part-time job locally – if it is required to help meet your financial needs.
- the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
This primarily covers children. Children’s needs will be prioritised by the courts, irrespective of whether they are both your children or from a previous, or new relationship. See our blog on who gets the house for more on this.
- the standard of living enjoyed by the family before the breakdown of the marriage
The court accepts that after a divorce there may be some budgeting and readjusting of lifestyle. But if you are used to have three family holidays a year and your ex is saying you can’t have any holiday at all moving forwards, a court is likely to disagree with such a drop in living standards.
- the age of each party to the marriage and the duration of the marriage
Age matters as it can affect job opportunity, ability to build up a pension fund and ability to obtain a mortgage. Duration of the marriage is also key as there is more of a presumption that all assets, irrespective of when they were accrued will be shared equally between the parties, as long as needs are met.
- any physical or mental disability of either of the parties to the marriage
This is likely to affect needs. Someone with a disability may have more needs or difficulty meeting those needs, than the other party.
- 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 bottom line here is the role of raising a family is given equal value to the role of working to provide for the family. It is possible both these roles may become more interlinked when you separate. But in most cases these roles continue after you divorce and the court recognises that.
- the conduct of each of the parties, whatever the nature of the conduct and whether it occurred during the marriage or after the separation of the parties or (as the case may be), dissolution or annulment of the marriage, if that conduct is such that it would in the opinion of the court be inequitable to disregard it
For conduct to be taken into account it needs to be extreme. We are talking murder, gambling all the family savings away, child abuse etc. In most cases, behaviour during the marriage is not taken into account when deciding who gets what. Conversely, behaviour whilst trying to reach a financial settlement can, and very much is, taken into account by the courts. The court want to see you have both acted reasonably and responsibly to reach an agreement prior to going to court. See our blog here for more on this.
- in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefitwhich, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring
For most scenarios, this factor covers pensions. It could also be the sale of a business. If you were depending on your husband’s pension to live on in your retirement, this will be taken into account, even if the asset is not in payment yet and can’t be touched for several years. A pension on divorce needs to be valued and in a long marriage is considered an asset of the marriage.
How do I apply the Section 25 factors to my situation?
The simple answer is need. Well, reasonable needs, to be precise. Most cases are dealt with by need – unless there are many millions in the pot. A good starting point to answering the question ‘what am I entitled to on divorce’, is instead to ask yourself the question, “what do I need to meet my reasonable needs moving forwards”.
Let’s now take a look at how needs come into play when looking at what am I entitled to if I divorce my husband?
Division of property
You and your children both need to be housed. Your ex also needs to be housed. Our blog “who gets the house on divorce” goes into more detail on this, but a starting point to look at is working out how you can fund two homes from the existing assets.
Division of savings and any other assets valued at over £500
To get a legally binding financial consent order, you need to include a financial disclosure of all assets over £500. It does not matter whose name an asset is in at this stage. It still needs to be disclosed. In a long marriage the starting point for these assets is a 50/50 split. But only once both your reasonable needs have been met.
Division of pensions
All pensions, other than state pensions, must also be disclosed. Take a look at our guide to pensions on divorce here for more information on this area, which can be quite complicated.
Pensions generally are included as an asset of a marriage and they need to be valued if you want a legally binding agreement. For some, they can be the largest asset that a couple have. Recent caselaw (W vs H) confirmed that in a long marriage, pensions accrued before the marriage are less likely to be ringfenced. Again, the starting point is a 50/50 split, but only where that meets your needs. At the other end of a relationship, in (KM vs CM) it was confirmed that pension values would be taken at the time the finances were finalised and not at the date of separation.
Division of business
A business, or your ex’s share in a business, is also considered an asset of the marriage. It therefore needs to be valued and disclosed as an asset. Some businesses are wholly reliant on the person working in them and may have a value of £0, or just be valued at what the balance of the business bank account is. Others, may be set up as a business to run a consulting or contract work. Or the business may have substantial assets or intrinsic value. It is important to work out the true value of a business to understand how to reach a fair financial settlement. Many people start with an accountant’s valuation, but if you disagree, then you can jointly instruct an expert to value the business. This is likely to cost a few thousand pounds however.
If the division of the assets does not allow you to meet you reasonable budget moving forwards, then, depending on both your monthly budgets, you may need an ongoing payment in order to live. Our guide to spousal maintenance explains this area of family law in more detail. But the key factor is both sides’ reasonable budgets moving forwards. If one of you has a monthly deficit of £500 to meet you reasonable living costs and the other has a monthly surplus of £2,000, then spousal maintenance is likely to be considered by the court. When looking at what am I entitled to if I divorce my husband, spousal maintenance is not guaranteed but it should always be considered and then dismissed as necessary or by agreement.
As mentioned above, child maintenance is the one area of family law where there is a calculator to give you an answer on what you are entitled to. You can find the calculator here. You will need details of your ex’s income and any private pension contributions they make. This is easier if they are employed on a salary but can be more complicated if they are self-employed and earn different amounts throughout the year. It can also be affected by any annual bonuses they receive. Ideally you will agree an informal ‘family-based’ arrangement, taken from the above calculator, but if there is domestic abuse or missed payments, then you can seek help from Child Maintenance Options.
Once you are separated, you may be entitled to certain benefits, such as child benefit, or universal credit, that you would not have been entitled to when you were living together as a couple. There is a calculator here that you can put your details into once you separate and it will let you know what additional help you could receive. It is important you look to maximise your own income, especially if you are looking at the issue of spousal maintenance.
Let’s now take a look at factors less likely to be taken into account when deciding what am I entitled to if I divorce my husband?
Assets accrued before marriage where the relationship is a short one.
If you were married for less than 5 years, or living together and married for less than 5 years, a court is more likely to try to achieve a clean break and put you back in the position you were before marriage. Needs still come into it and if you have children, they will always be prioritised in any financial settlement.
Accommodating children over 18
As parents you probably understand that when a child reaches the age of 18 or finishes full-time secondary education (not university or tertiary education as this is treated differently), they still need help with finding their way in life and you may agree to support them in your financial agreement. But a court will not regard them as a child when it comes to establishing needs once they have reached the age of 18 or finished secondary education.
Assets from an inheritance
Inheritance may be ringfenced, as long as needs can be met from the assets. If inheritance has been ‘invested’ into the family, for example by paying off the mortgage, buying family holidays or building an extension, it is less likely to be treated separately than if it had been left in a savings account in your ex’s name only. Inheritance must be disclosed as part of your financial disclosure. It would be a difficult argument for example if someone has £1 million in inheritance sitting in their savings account, but are arguing over a property valued at £250,000.
Legal costs if both parties acting in good faith
It is unlikely you would be able to make a successful claim for legal costs from your ex, unless they have acted unreasonably or irresponsibly in trying to resolve the financial settlement out of court. Read our blog on “why mediate before court” for more information on this. If you are at court because your ex has not made a full financial disclosure on a Form E, or responded in a timely matter to solicitor letters, refused reasonable offers of settlement or declined family mediation then you will have a stronger case to ask for your legal costs to be paid by them. There are never any guarantees however, as it is up to the court’s discretion.
Never normally taken into account when deciding what am I entitled to if I divorce my husband?
There is no guarantee that future inheritance will be received. Families can fall out, wills can be changed by the gifter and care costs can use up all their assets. It is therefore not taken into account on a financial settlement. It is a different matter if the inheritance has already been given, but not yet received or given as a gift already (for inheritance tax purposes).
Behaviour during the marriage or post separation is not usually taken into account when dividing up assets. The court does not look to punish or reward behaviour and, under the new no fault divorce law, the actual grounds for a divorce are not stipulated on the divorce petition. If you are relying on behaviour as a reason to split the assets in your favour, you should take good legal advice before appearing at any court hearing.
You can see that the answer to the question “What am I entitled to if I divorce my husband?” is not clear cut. Many factors are taken into account and as every single family has different circumstances, it is difficult to get a definitive answer.
If you are struggling to reach an agreement on a financial settlement, do take a look at the 11 ways to reach an agreement. It is likely you will try at least one of these methods to finalise your agreement.
If you are struggling still, family mediation is the court’s and Government’s preferred method to resolve matters outside of expensive court hearings. We offer a free consultation to explain how it works or look at our blog here on the best mediation services in the UK.
As a starting point however, focusing on your reasonable needs, removing blame and recrimination from the situation and taking good independent legal advice will set you off on a good footing to reaching a fair and amicable agreement.
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We wish you all the best in resolving your current situation.
The team @MediateUK