What Am I Entitled to If I Separate From My Husband or Wife?
There are many misconceptions about what a person is entitled to if they separate from their spouse. The reality is that the law in this area can be complex, and it’s important to get an understanding of your rights before you make any decisions.
You don’t necessarily have to go to court to agree to arrangements for separation unless you and your spouse can’t reach an agreement. In the case that you do agree you should still consult a family lawyer before you make any final decisions.
What are Matrimonial Assets?
The term matrimonial assets are used to describe all the married couple’s possessions that they have acquired during their time together. This includes everything but not limited to personal belongings, bank accounts, and investments. In order for two people to be able to settle disputes on how their property should be divided after separation or divorce, it’s important for them to know what is included in this definition.
Is Your Pension a Matrimonial Asset?
If you paid into a pension while you were married, it is classed as a matrimonial asset, and your spouse could be eligible to part of your pension by way of a pension sharing order (PSO) when you divorce.
The court will issue a PSO, which will state how much of your pension your spouse will be entitled to or how much of their pension you’ll receive. The amount is shown as a percentage of the transfer value of the pension to be split. To make a decision, the court will look at both parties’ financial requirements and come to a fair arrangement.
Is a Business Considered a Matrimonial Asset?
The courts will typically consider a business as a matrimonial asset in a divorce settlement. Even if one spouse had no direct involvement in the business, they might be still entitled to a part of it. Resolving finances through a divorce can be a complex enough process as it is without the added complications of valuing and dividing a business. It is important to enlist the aid of a lawyer to help you navigate the divorce proceeding if a business is involved.
Non-matrimonial assets are financial assets obtained before you were married or after you separated. It isn’t always simple to agree which assets can be classed as non-matrimonial. However, they may include inheritance (which we will discuss in more detail shortly), property purchased as an individual and family businesses.
Usually, you can request for your non-matrimonial assets to be left out of the Financial Settlement. However, this won’t necessarily be agreed upon. For instance, if your matrimonial assets don’t adequately provide for your ex-partner or children, the court can rule that these assets are part of the Financial Settlement.
How are assets divided in a divorce?
When you divorce your spouse and are in the process of resolving finances, you shouldn’t assume that the assets will be divided 50-50. While an equal share of the assets is often a good starting point for discussion, it might be the case that one person comes away with more than the other. Ideally, the settlement will be reached mutually between both parties with the help of a divorce lawyer. If an understanding can’t be reached, it will go to court, and the financial settlement will be decided there.
The court will consider the rules laid out in section 25 of the Matrimonial Causes Act 1973 and look as factors such as:
- The income, earning capacity, property and other financial resources (which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire).
- The financial needs, obligations and responsibilities of each of the parties (to the marriage has or is likely to have in the foreseeable future).
- The standard of living enjoyed by the family before the breakdown of the marriage.
- The age of each party to the marriage and the duration of the marriage.
- Any physical or mental disability of either of the parties to the marriage.
- The contributions that each of the parties has made or is likely in the foreseeable future (to make to the family’s welfare, including any contribution by looking after the home or caring for the family).
- The conduct of each of the parties (if that conduct is such that it would be inequitable to disregard it in the opinion of the court).
- In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
If there are children (under the age of 18) involved in the divorce, the court will make this the first consideration.
How is the family home divided in a divorce settlement?
The matrimonial home is most likely to be the most significant financial asset considered in a divorce settlement. As with other assets, there are many factors depending on the individual circumstances of the parties involved that will determine the outcome of how your house will be divided.
Common ways for this to be resolved include:
- One spouse can buy out the others’ share.
- The house can be sold, and the proceeds shared between both parties.
- Transfer part of the property value from one party to the other with the person giving up their share of ownership rights but keeping a stake in the property or receiving a lump sum.
- Agreeing to wait until any children have reached the age of 18 before selling the property.
Is my spouse entitled to my inheritance?
Often when couples are divorcing, there are assets that have been inherited by one party that will need to considered and a decision made as to how these will be split or who will keep them. It is a common worry that as to whether inherited assets will be included in any financial settlement.
In English law, when a couple separate and decide to resolve their financial arrangements, it is necessary for each person to confirm all their assets.
This includes any inherited assets. Generally speaking, all the assets are treated as joint assets and put into a pot for division. There is no rule that inherited assets/income are automatically excluded and can be kept by the person who inherited them. Instead it is necessary to consider the individual circumstances of the couple.
The factors that would need to be considered include:
- How much the inherited assets were valued at? The greater the value, the more likely they are to be considered.
- When the assets had been inherited? If these had been inherited some time ago, it more likely that they would be treated as matrimonial assets. Those acquired more recently may be able to exclude them from the pot of joint assets.
- How the inheritance was used? Was it put into the family home or set up a business? Was it left as savings? If the money has been kept separately, it may be possible to argue it is not matrimonial money and should be excluded from the matrimonial pot. If it has been used jointly or to maintain a particular lifestyle it will be harder to argue that the money should be not as matrimonial money.
- How long is the marriage? The longer the marriage, the more likely such assets would be considered joint assets and be divided. If it is a short marriage, it may be easier to argue the inheritance should be ‘ring fenced’ and excluded from the negotiations.
- The needs of each person. If needs can only be met by using the inherited assets, it will be harder to argue they should not be included.
Commonly one person will seek to argue that the other is about to receive an inheritance or will benefit in the future from an inheritance. As a general rule, future inheritances will be excluded from negotiations unless they are worth a significant sum. If one person is about to inherit from someone who has recently died, it may be easier to argue that the inheritance should not be included in the matrimonial pot.
Is there anything you can do to protect an inheritance?
Consideration could be given to a pre-nuptial agreement (an agreement made prior to a marriage being entered into) or a post-nuptial agreement (an agreement made after a marriage has been entered into). Cartwright King can offer specialist advice in these areas and should be sought to ensure that these will be valid.
Cartwright King has a team of family solicitors who are on hand to help with all family law matters resulting from divorce. To speak to our team please call us, or email us using our contact form below.
How Cartwright King Can Help With Divorce Settlements
We understand how difficult and emotional a divorce can be, which is why we offer a professional, expert and sympathetic service.
We know that if children are involved, you will want to know where they will live or when you can see them. We will answer all these questions for you as well, discussing the potential division of finances, property and assets.
We aim to achieve the best possible result for you. We make sure that you are fully aware of what will happen in the process and will continue to explain everything along the way with regular updates.
Our clients choose us because of our great client service, legal reputation in the market and our rankings in the Legal 500 and Chambers legal directories.
We can help with:
- Finances on Divorce
- International and Expat Divorce
- Financial Settlement Advice
- Child Arrangement Orders
- Separation Agreements
- High Net Worth Divorce Service
- Fixed Fee Divorce
Benefit From a Short, Initial Telephone Conversation
You can benefit from a short, initial telephone call with a specialist Cartwright King divorce lawyer to assess your options.
There’s no substitute for speaking to one of our specialist solicitors to get realistic, clear advice.
For immediate assistance, call us or email us for your short initial discussion*.
The discussion is completely informal and confidential and is an opportunity for us to assess your case and consider funding options. This will then allow us to make a formal appointment with you so that we can:
- Get to know you
- Understand your situation
- Agree how you want to proceed
*Please be aware that the short initial discussion is not for advice purposes.
We’re here for you
All advice is correct at time of publication.