Going through a divorce can be really upsetting and unsettling. It’s one thing to lose a marriage that you’ve perhaps been in for years, but everything that comes with may it be left in the lurch too; your children, your property and your finances.
Part of the divorce proceedings is working out who is entitled to what share of the family assets, and this can be a complex process. There are no specific guaranteed entitlements for either person when it comes to getting a divorce as each marriage is unique and everyone’s circumstances must be assessed individually when trying to reach a divorce settlement that works for each party. What you’re entitled to can be a difficult question to answer, but we can hopefully offer some clarity.
What assets are split in a divorce?
Assets can be split into two categories in a divorce; matrimonial assets and non-matrimonial assets.
Matrimonial assets
These are assets that have been acquired during the marriage by you and your partner such as your family home, pensions, savings, personal belongings and cash in the bank.
Non-matrimonial assets
Non-matrimonial assets are inherited assets or assets brought into the marriage. These are financial assets that were acquired before entering into the marriage and could be property, pensions or a business. These are usually treated differently than marital assets but aren’t necessarily excluded from a divorce settlement. It depends on the individual circumstances. For instance, you might have inherited some money, but you then used that money to purchase a car for the family. The car may then be considered a matrimonial asset.
How are assets split in a divorce?
You might initially think that any matrimonial assets – particularly finances – should be split 50/50 and non-matrimonial assets left to whoever they legally belong to. There is no rule or law to say that assets should be split equally. There are a number of different factors to consider, including:
- The needs and welfare of any children under the age of 18
- The income, earning capacity, property and other financial resources which each of the parties within the marriage has or is likely to have in the foreseeable future
- The financial needs, obligations and responsibilities which each of the parties has or is likely to have in the foreseeable future
- The standard of living enjoyed by the family before the breakdown of the marriage
- Any physical or mental disability of either of the parties to the marriage
- The contributions that each of the parties have made or are likely in the foreseeable future to make to the welfare of the family
- The duration of the marriage
The hope is to come to a mutual agreement on the fairest way to split assets but if there is a need for the court to step in and get involved, assets will be split with the above factors in mind.
Splitting finances in a divorce
When splitting finances, your divorce solicitor will usually break any finances down into three areas:
- Capital claims – properties, shares and savings
- Pension value
- Income – including any from additional property rentals etc
Even though finances aren’t always split equally, it’s usually the starting point when working out who should have what. From there, the individual circumstances are taken into account. Splitting finances will always be more straightforward if both parties agree to the divorce, if the ongoing relationship is not bitter, if there are no children involved (or if there are, that they are grown up and financially dependent), if one of you isn’t financially dependent on the other and if you agree how your property and pensions should be split.
Who is entitled to the property in a divorce?
A family home is often the most valuable asset within a marriage – not only financially but emotionally too. There are a few different options when dividing a house within a divorce:
- Sell and share – both parties move out of the matrimonial home and split the sale proceeds between them in an agreed way
- Buying out – one party can buy the other out of the property and become the sole owner
- Transfer of value – one party transfers some of the value of the property to the other person. The spouse leaving the home would not then own any of the property but would keep a stake in the home value, meaning that if/when it got sold then they would receive a share of the sale proceeds
- Unchanged ownership – one party will continue to live in the house but the ownership of the property remains unchanged
What about if only one person’s name is on the property deeds? Does that mean they have full control over the property? Ultimately, yes you may take the property back as yours – however, it’s not quite that simple. Your ex-partner still has matrimonial home rights. This means that even if a property is not in someone’s name, they have a right to live there until the marriage ends if it is their matrimonial home. Once the divorce is finalised however, this may end their right to live there so it is by no means a permanent solution.
What happens to our pensions in a divorce?
Dividing pensions in divorce can be a complex part of the process that your divorce solicitor and pensions advisor are probably best handling. Not all pensions can be divided in a divorce, however. Pensions that can be split include:
- A personal pension scheme (includes Stakeholder and Self Invested Personal Pensions)
- Workplace pensions such as a defined benefit scheme or defined contribution scheme
- Any part of your entitlement to the new State Pension that is ‘protected’ and built up under the old pre-April 2016 Additional State Pension
When it comes to splitting these pensions, they are commonly dealt with in one of the following ways:
- Pension sharing order – you’re given a percentage of any one (or more) of your ex-partner’s pension funds by court order
- Pension offsetting – the value of any pensions is offset against other assets. For example, you might agree to keep the pension fund and your ex-partner might agree to keep the family home
- Pension attachment or ‘earmarking’ – some of your pension at retirement is paid to your ex-partner, or vice versa. This can be done in either a lump sum or as part of the pension income – or both
- Individual agreement – between both parties, you might decide to forgo any claims on pension assets in favour of a more balanced settlement of other divorce terms. For example, one party might get better child access arrangements, or child maintenance if they agree not to claim against the other part’s pension assets
How we can help
If you’re going through a divorce, you don’t need us to tell you that it can be difficult. The last thing you need though is the headache of trying to split all your assets alone whilst trying to come to terms with big life changes. Although it is possible to arrange everything on your own, we would always recommend using a solicitor.
Whether that’s booking in for a couple of advice sessions to help you get your head around what you might be entitled to, or whether that’s using a solicitor to help you through the whole process; we’re here to make the process simpler, smoother and quicker.
Here at Bromfield Legal, we are experienced in family and divorce law. We will always do what is right and fair to obtain the best outcomes for our clients in a divorce. For more information on how we can help, please contact us.
