Divorce can be a difficult process.
In addition to the emotional challenges of a separation, there are often logistical challenges and financial ties to sever.
Whether it be property, savings, pensions or investments, determining how to fairly split your assets can be one of the more contentious aspects of a divorce.
In this guide, we’ll explore which assets are typically included in a divorce and how the Court will make these decisions.
Understanding the legal guidelines
In the UK, the legal framework for dividing assets in divorce proceedings is primarily governed by the Matrimonial Causes Act 1973.
This legislation outlines the factors that the court must consider when determining a fair division of assets.
Section 25 of the Act sets out the issues that the Court is to consider in deciding how to exercise its powers and divide any assets.
They are as follows:
- The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including 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;
- The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- The standard of living enjoyed by the family before the breakdown of the marriage;
- The age of each party to the marriage and the duration of the marriage;
- Any physical or mental disability of either of the parties to the marriage;
- 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 conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
- In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
How do children influence the division of assets?
If there are any dependent children under the age of 18 then this will have a large bearing on how the Court exercises its powers in deciding how to spilt assets in a divorce.
The Matrimonial Causes Act states:
As regards the exercise of the powers of the court under section 23(1)( d ), ( e ) or ( f ), (2) or (4), 24 or 24A above in relation to a child of the family, the court shall in particular have regard to the following matters—
- The financial needs of the child;
- The income, earning capacity (if any), property and other financial resources of the child;
- Any physical or mental disability of the child;
- The manner in which he was being and in which the parties to the marriage expected him to be educated or trained;
- The considerations mentioned in relation to the parties to the marriage in paragraphs ( a ), ( b ), ( c ) and ( e ) of subsection (2) above.
Which assets are excluded from a divorce?
Assets may be considered non-matrimonial assets if they were acquired by either spouse before they got married or after separation.
What is considered a non-matrimonial asset can vary, but they can include things such as:
- Property purchased under your sole name
- Established family businesses
- Prior investments
- Personal savings
If your assests have merged during your marriage (such as altering sole property deeds to include both names) it may change what would have previously been considered a non-matrimonial asset.
Which orders can a court make?
Payment of a lump sum
The Court can order one party to pay a lump sum or a series of payments.
For example, the Court could order one party to transfer payment for the interest in the former matrimonial home in return for the other party paying a lump sum. Or, a lump sum could be paid instead of futire spusal maintenance.