What am I entitled to on Divorce?
One of the questions we are often asked at Watson Thomas Solicitors is “what will I be entitled to if we get Divorced”.
It is of course natural for people to worry about how they will live without the financial support of their spouse, or alternatively, for the spouse who has historically supported the other party, they will worry about affording their commitments to a spouse and any children post separation.
There is no definitive answer to this question and the financial agreement reached will alter from case to case. That is why, what may have been agreed in one situation, will not necessarily be agreed or ordered in your case.
The Court works on the principle that finances should be divided in a fair manner to reflect all of the circumstances of the case. The Matrimonial Causes Act 1973 sets out more detail on the factors the Court must consider when deciding what is a fair settlement.
The most common factors a Court will need to consider are the following:-
- The age of any children and how the children impact upon the ability of one spouse to work and generate their own income.
- The length of the marriage.
- The age of the parties and their respective incomes and income prospects for the future.
- Any plans to cohabit or remarry.
- The housing needs of both parties.
There are a number of scenarios which often arise in a marriage which will lead to differing settlements.
1. Long marriage with grown up children where husband has generated an income and wife has cared for the home and children.
In the above situation, the Court will strive to ensure that the Wife is assisted by the Husband in “getting back on her feet” after the divorce. The level of assistance each spouse will need from her husband will vary from case to case. The Court recognises that the Wife has sacrificed a career for the sake of raising the children and seeks to ensure that she is not penalised for this. The Court will consider her needs and her ability to increase her income and order the Husband to pay maintenance to make up any deficit for such a time until she is self-sufficient. Contrary to popular belief, the Wife is not entitled to a share of income moving forwards, but it is awarded on a “needs” basis.
The Wife will also generally receive a share of the pension pot and often a larger share of the capital pot, to compensate for her lower mortgage raising capacity and to enable her to meet her housing needs.
2. Marriage where the children are very young
If you have young children, either of pre-school age or of school age, which makes it very difficult for both parties to work, often the Wife is the primary carer, and stays at home to look after the children. If the children are of pre-school age, then the Wife will have to balance the benefit of working against the cost of child care. If children are at school, then the Court will have an expectation that Wife will work within school hours and receive working tax credits.
In this case, the children’s needs are the paramount concern. Where there is not enough capital to house both parties, the Wife will often remain in the matrimonial home with the children for an agreed period of time.
When considering the Wife’s income needs, the Court will look at what the Wife can earn on a part time basis, coupled with Tax Credits and any other benefits and statutory child maintenance and calculate what she needs from the Husband by way of spousal maintenance.
3. Short or long marriage, equal contributions, no children or both parties working
Regardless of the length of marriage where both parties have contributed equally to the marriage, both work and have similar income levels and there are no children, then the Courts will strive to ensure that there is equality in terms of the capital distribution. The Courts will not make an award for maintenance in this situation, unless one party can prove that they need it to meet their needs.
Reaching an Agreement
There are many different scenarios and factors which should be considered when reaching a financial settlement and it is for that reason that a divorcing couple should take advice, to make sure that any agreement they reach is fair and reflects the order a Judge will make at Court. The Court has the overriding say on any agreement reached and so, it is important to ensure it is fair before it is submitted to the Court for approval.
There are many different ways of reaching an agreement with your spouse, either through Mediation, Collaborative Law or correspondence between solicitors. If it becomes necessary to proceed to Court then it is still open to you to reach an agreement at any stage, before a Judge imposes a decision on you.