Entitlements in Divorce
When a marriage comes to an end, sorting out the finances is often one of the most difficult parts. It’s not just about dividing money and property – it’s about making sure both people can move forward, especially when children are involved.
Whilst many people seem to believe that everything is split 50/50, there is under the law in England And Wales, no reference to any number or percentage. An equal division is considered but this is just a starting point. The reality is more nuanced. Every case is different, and the outcome depends on a range of legal and practical factors.
The law that guides this process is the Matrimonial Causes Act 1973, specifically section 25. The court’s top priority is the welfare and housing needs of any children under 18. Any financial settlement must ensure their needs are properly met.
The Law – Section 25 Factors
When deciding how to divide assets, the court will consider all matters but always looks at several key factors:
- What each person owns and earns now, and what they are likely to have in the future.
- Their financial needs, obligations and responsibilities.
- The standard of living and lifestyle they had during the marriage.
- Their ages and how long they were married.
- Any health issues that might affect earning capacity or financial needs. This can include the need to care for a child with any additional needs.
- The needs of any minor child and to a much lesser extent any adult child.
- The assets and debts.
- Contributions made by each person – whether through income, caring for children, or running the household.
- Any behaviour that’s so serious it would be unfair to ignore.
These factors help the court reach a fair and balanced decision based on the specific circumstances.
Matrimonial vs Non-Matrimonial Assets
The court usually focuses on matrimonial assets – things acquired during the marriage for the benefit of both spouses. This includes the family home, savings, pensions, and investments.
Sometimes, assets brought into the marriage – like an inheritance or property owned before the marriage – are considered non-matrimonial. These might be excluded from the settlement, especially if they were kept separate. The importance of the pre-marital ownership can diminish over time. But if the matrimonial assets are not enough to meet both parties’ needs, the court can include non-matrimonial assets to make sure everyone is financially secure.
How Do the Courts Decide on Division?
The process starts with both parties providing full financial disclosure. That means listing everything they own, earn, and owe – whether it is considered matrimonial or not.
If splitting everything equally meets both parties’ needs, the court may go with that. But adjustments are often made to reflect:
• The needs of any children.
• One person’s financial dependence on the other.
• Differences in pensions or future earning potential.
There are a lot of myths about what people are “entitled” to in a divorce. Let’s look at a few of the most common ones:
“I’m entitled to half of everything, no matter how long we were married.”
Not necessarily. The length of the marriage matters. In shorter marriages, especially where finances were kept separate, the court may not divide everything equally. In longer marriages, a split closer to 50/50 is more likely—but only if it meets both parties’ needs.
“I can claim half of my ex’s future inheritance.”
Generally, inheritance received after separation are not considered part of the matrimonial pot. Even during the marriage, inherited assets may be treated as non-matrimonial – unless they were used for the benefit of both spouses (e.g. buying the family home). Future inheritance is speculative and rarely included.
“The house is in my name, so my ex can’t claim it.”
Ownership doesn’t always determine entitlement. If the house was the family home, it is likely to be considered a matrimonial asset – even if only one person’s name is on the title. The court looks at how the property was used, not just who owns it.
“My pension is safe because I contributed before we got married.”
Pensions are often one of the biggest assets in a divorce. Contributions made before the marriage may be considered non-matrimonial, but if the pension is needed to meet the other party’s needs, it can still be divided. The court takes a practical approach based on fairness.
These myths can lead to unrealistic expectations and unnecessary conflict. That’s why it’s so important to get proper legal advice early on.
