Understanding Entitlements: What Am I Entitled to in a Divorce?
Divorce can be a complex and emotionally challenging process, and even with the introduction of a more straightforward no-fault divorce process which has been in effect since April 2022, ending a marriage or civil partnership can still be overwhelming. One of the biggest concerns for a couple going through a separation and the biggest questions our experienced Family Law team at Tollers gets asked is ‘What am I entitled to in a divorce?’ and ‘What are my legal rights from property to asset splits’?
In the UK, divorce law is governed by specific regulations that determine how spouses and civil partners divide their assets including their interest in the family home and any other property, their savings and investments, any business interests, their pensions and any other assets they may own. It can also consider what spousal maintenance may be payable.
To help you navigate this difficult and emotional topic, our family law team has compiled a list of frequently asked questions related to divorce entitlements in the UK.
What factors are considered when determining what I am entitled to in a divorce?
When determining entitlements in a divorce, the courts consider various factors, including the following:
- income, earning capacity, property and other financial resources each spouse has or is likely to have in the foreseeable future;
- financial needs and responsibilities of each spouse;
- standard of living during the marriage;
- the duration of the marriage;
- age and health of each spouse;
- contributions made by each spouse (financially or otherwise);
- the welfare of any minor children.
Section 25 of the Matrimonial Causes Act 1973 (the Act) sets out the basic guidelines that the English and Welsh Courts apply when dealing with financial claims. In addition, the Court will also have reference to previously decided cases, known as case law, when making its decision.
How are assets divided in a divorce?
In the UK, assets acquired during the marriage are generally considered to be matrimonial property and are subject to division. The Court aims to achieve a fair distribution of assets, taking into account some of the factors mentioned above. While typically this will involve dividing assets equally, it may be possible to argue that there should be an unequal distribution depending on the individual circumstances.
Assets that were acquired before or after the marriage may be regarded as non-matrimonial property. It will depend on the type and value of these assets and both parties’ needs as to whether the court will take these into account and if so to what extent. If an agreement can be reached a financial and property settlement is often entered into upon divorce. This is a formal agreement designed to set out any financial responsibilities and fairly divide property and finances once a marriage or civil partnership has ended. Read our previous article regarding financial settlements: Property and Financial Settlements in Divorce: FAQs and Specialist Family Legal Advice.
If you cannot reach an amicable agreement then an application will need to be made to the court so that the matter can be considered by a Judge.
Are prenuptial agreements enforceable in the UK?
Prenuptial agreements are not automatically legally binding in the UK, but they can carry weight in Court proceedings. The Court will consider the terms of the agreement, the circumstances in which it was made, and whether it is fair to uphold it. It is essential to seek specialist legal advice to ensure your prenuptial agreement is drafted correctly and all of the relevant criteria are considered to make it as binding as possible.
How are pensions divided in a divorce?
Pensions are regarded as part of the matrimonial assets and can be subject to division in a divorce or civil partnership dissolution. The Court will assess the value of each spouse’s pensions and may make a pension sharing order so that one person receives a share of the other spouse’s pensions or they may offset the value of the pension against other assets or they can make a lump sum payment to achieve a fair division.
What about child arrangements and maintenance?
Child arrangements and child maintenance are considered separately from a financial settlement within divorce proceedings. Child maintenance will usually be dealt with through the Child Support Agency. If no agreement can be reached regarding child arrangements then an application can be made to the court under the Children Act. The Court’s primary concern is the best interests of the child. Factors such as the child’s welfare, relationship with each parent, and their wishes and feelings (depending on their age) will be taken into account when determining what the child’s living arrangements should be.
Do I need a solicitor for my divorce?
While it is not a legal requirement to have a solicitor, seeking the appropriate legal advice from a trusted solicitor specialising in family law is vital. A family law solicitor specialising in divorce and matrimonial finances can protect your rights and help you navigate the complexities of the divorce process and financial settlements.
Solicitors for Divorce and Matrimonial Finances
Having a comprehensive legal understanding of your rights, obligations and negotiation powers when going through a divorce or civil partnership dissolution is essential. In doing so, you will be best positioned to propose agreement terms that suit you and protect your future financial interests.
Talk to Tollers
If you are divorcing or facing a civil partnership dissolution and are asking yourself ‘What Am I Entitled to In a Divorce?’ and require the advice and guidance of an experienced matrimonial finance solicitor… Talk to Tollers on 01483 901 095 our expert family law team can assist you in providing practical advice on all aspects of your financial settlement agreement.