What am I entitled to in a divorce?

It’s a simple question, and one that must be asked by many people going through a divorce: what am I entitled to?

Unfortunately, the answer isn’t always so simple.

Only matrimonial assets are divided

Obviously, when a divorce takes place the parties’ assets have to be divided between them, but what exactly are the assets?

Only when that question has been answered can we look at how the assets are divided.

The answer to the question comes from the general principle that marriage is regarded by the law as a joint venture, with both parties playing a full role, irrespective of whether they have contributed as a ‘breadwinner’ or a ‘homemaker’.

This means that the matrimonial assets are all those assets accumulated during the marriage (i.e. up until the parties separated), through the joint efforts of the parties to the marriage.

And this in turn means that assets that weren’t accumulated during the marriage or through the joint efforts of the parties (such as inheritances) are not matrimonial assets.

But there is an exception to this rule. As we will see in a moment, the financial needs of the parties is one of the most important issues to be considered when dividing the assets. And sometimes the matrimonial assets are not sufficient to meet those needs. In such a case the non-matrimonial assets can be used to meet the needs.

Dividing everything equally on divorce

Having established what assets are to be divided, we now turn to how they are divided.

And here it is often stated that the starting-point is that the matrimonial assets should be divided equally between the parties. That would obviously be considered to be fair in many cases, but it is not quite true.

What the law actually does is use a number of factors to decide how the assets should be divided, and then compare that decision against the ‘yardstick of equality’, as it is called, to determine whether the decision is fair.

In other words, departing from an equal division of the assets should only occur if there is a good reason to do so.

The importance of needs on divorce

As just mentioned, the law uses a number of factors to decide how the assets should be divided.

Those factors include such things as the income, earning capacity, property and other financial resources of the parties, the ages of the parties and the duration of the marriage.

But in most cases by far the most important factor is the financial needs of the parties, including their income needs and their housing needs (particularly if they have children living with them). The law will try to ensure that those needs are met out of the available assets, if possible.

And often the income (or earning capacity) of a party will have a significant bearing upon their needs.

For example, a party may need to raise a mortgage in order to rehouse themselves, but this will be much easier for a party with a higher income. In such a case that party’s needs may be less than the other party’s needs, as they will not require as much from the assets to rehouse themselves.

So needs can often be a reason why there should be a departure from an equal division of the assets.

As can be seen, there is no easy answer to the question: what am I entitled to in a divorce? (And the above is just a brief summary of the law – for further information, see this page.) In many cases there will simply be an equal division of the assets, but often that will not be appropriate.

Obviously, the best way to find an answer in your case is to seek expert legal advice.

How can we help?

For further information, please see the Divorce, Separation and Finance page.

Walker Family Law is an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.

Please contact us if you require any further information