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Divorce Financial Settlements – what are you entitled to?

We receive many phone calls from couples telling us they have come to an agreement on their finances and would like a financial court order to reflect their agreement.

Whilst there may be agreement, as family lawyers, it is our job to advise you on whether the agreement represents a fair divorce financial settlement for you. In this article, our family solicitor answers some of the most frequently asked questions.

What am I entitled to in a divorce financial settlement?

The starting point for any divorce settlement is often a 50/50 split however, the court will have the final say in all settlements.  In some cases, a court may decide that one party is entitled to a greater share of the matrimonial assets.  The court will not discriminate between a homemaker and breadwinner e.g. where a couple have been married for decades, a partner who left work to raise the children may well be awarded half the joint assets and half their ex-partner’s pension entitlement whereas two young people with no children could be awarded with whatever they brought into the marriage.  Each situation is unique and will be treated as such by the courts.  Matrimonial assets that you may be entitled to include:

  • Money (including savings and investments)
  • Property (including the family home and any property owned individually)
  • Pensions
  • Life insurance policies
  • Pensions
  • Vehicles
  • Chattels e.g. jewellery and watches 
  • Financial support such as child maintenance or spousal maintenance payments.

The court will balance the needs of both parties and also any children involved.  NOTE:  Children are given priority by the courts and any issues, including maintenance will be dealt with separately.

Factors taken into account in a divorce settlement

There are no set rules or calculations used to determine a fair split but a range of factors are considered to ensure the needs of both parties are met.  This includes:

  • The standard of living prior to separating
  • Each partner’s individual assets
  • Earning capacity
  • Time out of the workplace
  • Your ages
  • Length of marriage
  • Any physical or mental disabilities
  • Any contributions to the marriage made by each party (financially and emotionally)

Can my ex claim for property after the divorce?

It is important to remember in England and Wales, getting divorced does not end your ability to make any financial claims against the future earnings of your ex, or them against you.  Whilst a Final Divorce Order severs the marriage, it does not sever the financial commitment that exists between you both.  Therefore, one partner can try to claim ownership over their ex’s property even after the Final Divorce Order has been granted.

A Financial Order, including a Clean Break will sever financial commitments between you both whilst a Maintenance Term will detail how long any maintenance payments will need to be paid for. The terms can include a clean break or there may be permission for ongoing maintenance.

A financial settlement is separate to your divorce and can be made before, during or after your divorce.

Can I protect my pension during divorce?

A pension is viewed as an asset of the marriage and the value of the pension fund will therefore be considered as part of any proposed settlement.  There are several ways to deal with pension arrangements which could include:

  • You are given a percentage share of your former partner’s pension pot (known as pension sharing)
  • The value of the pension is offset against other assets e.g. you keep your pension and your former partner keeps the home.
  • Some of your pension is paid to your former partner (known as pension attachment or pension earmarking).  It is similar to a maintenance payment directly from one person’s pension pot. These are very rare.

Furthermore, if there is a dispute whereby either you or your former partner argue the case is one where needs are a significant factor, a division to achieve equality of income is likely to be the correct approach. This approach often requires expert evidence from a PODE (pensions on divorce expert). This was highlighted in the case of T v T (2021) EWFC B67.

For more information and particular court cases involving pensions, please see our previous article here.

This area can be very complex and we would advise you speak to our highly trained family lawyer, Carline, who also trained as an economist.  Carline has specific expertise in complex financial matters including disputes relating to business assets and pensions.

Here to help you

If you have any questions about divorce or arranging financial settlements, please call Carline on 01926 354704.

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