Divorce financial settlements

A divorce financial settlement is a legally binding arrangement that sets out how you and your ex-partner will divide your assets when your marriage ends. It can include:

• Property
• Savings and investments
• Pensions
• Debt
• Child maintenance
• Spousal maintenance

No matter how amicable your split, it’s vital to have a legally binding financial settlement when you’re separating from your partner.

In England and Wales, even after you’re divorced, you can still make financial claims against your ex and vice versa, and there’s no time limit on this unless there is an order stating that any settlement approved by the court is ‘full and final’ or ‘a clean break’.

This is why it’s crucial to have a consent order with exact details of your financial arrangements with your ex-partner.

You can agree a financial settlement any time during the divorce proceedings – either before or after the divorce is finalised – however it is usually best to reach an agreement on your finances before you finalise your divorce. That agreement in then submitted to the court to approve as ‘a Consent Order’ assuming the court deem the agreement to be fair.

Your relationship, good or bad, with your ex-partner will affect how long it takes to reach a financial agreement, and it will also depend on how complex your financial affairs are. In most cases, you should be able to reach a financial settlement within the same timeframe as the divorce proceedings, but arguments can delay or extend the time it takes to divorce.

Rarely. The guiding principle is that any financial settlement should be fair and give priority to the welfare and needs of any children.

However, if you are divorcing because of extreme behaviour such as domestic violence, or if one of you has been trying to sabotage the financial settlement by reckless spending, or by hiding or destroying assets, the court may take this into consideration. If you believe your partner’s behaviour meets any of these criteria, tell your solicitor at once.

Every marriage and divorce is different. There are no hard-and-fast rules about dividing assets on divorce.

If you want an idea of what you might be entitled to, it’s best to seek advice from an experienced family lawyer. They will look at your individual financial circumstances, give you an honest view on any problem areas to look out for, and tell you how the court is likely to view your particular situation.

The court has ultimate discretion on the division of assets on divorce, guided by fundamental principles of sharing, needs and fairness. How your assets will be split depends on how long you’ve been married or in a civil partnership, as well as other factors, including:

• Your age and your partner’s
• Your ability to earn an income
• Your property and money
• Your standard of living and living expenses
• Your role in the marriage (e.g. were you the primary breadwinner or the stay-at-home parent) and so on

The court will always strive to find the fairest solution, but arrangements for the children’s welfare (in terms of housing and child maintenance) always have the highest priority.

Assets are not automatically split equally in a divorce. The main consideration is the individual needs of everyone involved, particularly the children.

The court may consider a 50/50 split if you have been married a long time – or an unequal split if they think one of you is in greater need than the other. For example, if one partner gave up a career to provide childcare, the judge may consider an unequal split.

It’s important to distinguish between your matrimonial assets and your non-matrimonial assets, as it could make a difference to your divorce financial settlement.

Matrimonial assets are the financial assets that you and your spouse built up during the time you were married, including your:

• Family home
• Other property or land
• Pensions
• Savings
• Cash in the bank
• Vehicles
• Furniture and appliances
• Investments
• Businesses

Non-matrimonial assets are financial assets which were acquired before or after the period you were married. Non-matrimonial assets typically include things like inheritances, family businesses and property bought before the marriage or after separation. Depending on your circumstances these non-matrimonial assets may or may not form part of the settlement.

During a divorce, your matrimonial assets may be divided between you and your spouse, regardless of where they came from originally, e.g. your career, an inheritance or gift from a family member. The split ultimately depends on the financial situation of each partner with priority for the children. Essentially the law in England and Wales requires that each of you should receive a fair settlement that meets your financial needs.

Non-matrimonial assets are a little more complicated. Even if you and your ex-partner have agreed to exclude them from the financial settlement, the court may decide differently. This may happen if the matrimonial assets are not enough to provide for your children or one of you. Or if a specific non-matrimonial asset was used in your marriage – for instance, if an inheritance funded building work on the family home.

Yes. If you and your spouse have accrued any debts during the term of your marriage, these could  also be split as part of your divorce financial settlement. This includes your mortgage, credit cards, overdrafts, loans and any other commitments. It can be difficult to separate individual debt from family debt which can become an issue.

Business assets can be included in a divorce settlement. For example, a family business is likely to be seen as a source of income rather than an asset in the same way as a family home or savings pot. So even if one of the partners had no direct involvement in the business, or did not help to build it up, they may still be entitled to some of its value.

What happens to a business in a divorce could depend on careful, delicate negotiation between you, your partner and possibly other family members, so it’s vital your solicitor has the right expertise. At Clarke Willmott we have many years’ experience in supporting family businesses and farming families – some over several generations.

Assets held overseas could  be considered and included in the same way as any other assets.

If you or your partner is a non-UK national, lives abroad or has property, a business or other assets overseas, consult an international divorce solicitor. There may be multi-jurisdictional issues to consider as part of your financial settlement.

And if you suspect your spouse may be hiding overseas assets or moving assets offshore to make them more difficult to recover, tell your solicitor immediately.