How do you calculate a fair divorce settlement?

Divorce can be an extremely stressful experience for many people, involving as it does both the emotional upheaval of ending a long-term relationship and the practical challenge of securing your future financial security.

Wilson Browne Solicitors has considerable experience of helping people through divorce and will be delighted to offer you the support and guidance you need. Our family law team is recognised by the Legal 500 (a who’s who of the legal profession) and work at all times with the highest levels of integrity and sensitivity.

We will look below at some of the most important issues you need to be aware of should you be facing the prospect of divorce.

What is divorce?

Divorce or dissolution is the legal process by which a marriage (including a same-sex marriage) or civil partnership is formally brought to an end. While a divorce needs to be approved by a court most couples are not required to attend a hearing in person.

Recent legislation has seen the introduction of ‘no-fault divorces’ which seek to make the process less acrimonious by removing the need for either party to blame the other for the breakdown of the marriage.

What is a divorce settlement?

A divorce settlement (or financial settlement) is an agreement which divorcing couples reach (or have imposed by the court) on the sharing out of their assets – including money, property and possessions.

While it is not possible to apply for a divorce settlement until the conditional order (formerly the decree nisi) stage of the process, it is advisable to begin negotiations with your partner as soon as possible after divorce proceedings begin. Disagreements sometimes occur over the dividing up of assets and can potentially cause delays to the divorce – leading to increased stress and ill feeling.

What is the usual financial split in a divorce?

The starting point of the legal process is usually that a couple’s assets should be split 50-50 following a divorce in the UK. It is important to stress, however, that the overriding aim is to achieve fairness to both sides – and there are many instances where the court will decide to give one party a greater share than the other.

Are financial settlements on divorce fair?

It is preferable for couples to reach agreement on any settlement themselves (we will look at how they may go about this below). They know their personal circumstances better than anyone and should have an instinctive feel for what would constitute a fair settlement for themselves and any children involved.

Should it not be possible for the two parties to reach an agreement, a settlement will be imposed by the court. In doing so, the court will seek to be fair to both partners. It has wide-ranging discretionary powers and will take a number of factors into account. This means that a ‘fair’ settlement will not necessarily involve assets being split 50-50. For example, where any children live with one partner, that partner may be judged to need a greater share of the existing assets, together with ongoing financial support from their former partner. Conversely, should one party be likely to earn a far higher salary than the other in future, the court might consider that they need less than 50 per cent of the assets.

What is a fair split in a divorce?

While the majority of divorce cases do not require the court to impose a settlement, it is useful for couples to be aware of the judgements it can make and the factors it would take into account in reaching a decision as this legal perspective can guide and inform the partners in their efforts to reach what both consider a fair resolution.

The orders that a court can make include:

• Payment of a lump sum
• Sale or transfer of property
• Pension sharing
• Spousal maintenance
• Child maintenance (outside the jurisdiction of the CMS)

The legal process will generally begin with the assumption that all of the couple’s assets should be divided equally following the divorce.

There are a number of reasons, however, why the court may consider it fairer to give one party a greater share.

The wellbeing of the children

Should the couple have any children, their future welfare will be the overriding concern of the court. At the most basic level, this means ensuring they have a roof over their heads and so the court may give the custodial parent the right to remain living in the family home – at least until the children reach adulthood.

As the custodial parent will be responsible for the children’s upkeep the court may also award them a greater share of other assets, or make provision for the other parent to provide ongoing maintenance payments.

Financial obligations

As we have seen above, the custodial parent may require a greater share of the divorce settlement in order to care for the children. The same principal could apply in other cases where one party was likely to have greater future financial outgoings – for example, if they required a live-in carer due to health problems.

Contribution to the marriage

A partner who took responsibility for paying the mortgage and bills on a property may feel they are entitled to sole ownership of it in the wake of a divorce. The court, though, is likely to take a more balanced view and rule that someone who took responsibility for raising a family and looking after the family home is entitled to an equal share of the property.

Time out of work

The court may be even more sympathetic to a partner who raised a family if they gave up a well-paid job to do so. By leaving employment for a significant period of time, they could have forgone a considerable amount of income over the years and the court may award them a greater share of the assets to partially compensate them for this.

Future earning capacity

As well as looking at each partner’s past contribution to the marriage, the court will also consider how the future finances will be affected by the divorce. Someone may receive a lesser share, for example, if they have formed a new relationship with a wealthy partner.

Standard of living prior to divorce

Although a fall in living standards for both parties often results from a divorce (as there are insufficient assets to allow them to maintain their previous lifestyle), the legal process will seek to keep this to a minimum. The court is likely to consider it unfair for someone who lived a life of luxury for many years to be reduced to hardship – even if they contributed little to the marriage.

Duration of marriage

One area of contention in negotiations over a financial settlement on divorce can be what happens to assets that either party owned individually prior to the marriage – such as a property. In the case of short marriages, it may be that both parties are allowed to keep assets they already owned, with only those that were accrued jointly being divided. The longer a marriage lasted, the more likely it is that the court will rule that all assets be split between the parties.

Age

In seeking a fair resolution, the court will also take into account the age of the parties. In the case of older couples, for example, it may be considered a priority to ensure that both partners have access to adequate pension arrangements.

How can couples reach a fair settlement on divorce settlement without going to court?

Most couples are able to find a mutually acceptable way to divide their assets without the need for an expensive and stressful court hearing.  We will take a look at how the partners can work together to find a solution.

Negotiations via solicitors

A traditional way for a settlement on divorce to be agreed is by the couple negotiating through their respective solicitors, who will be able to use their experience and expertise to suggest ways of reaching a fair divorce settlement without the need for a court hearing.

It is also important to be aware that any agreement the couple reach will still have to be approved by the court – which it will only do if it considers it to be a fair settlement. Solicitors are aware of what is likely to be acceptable to the judge and so taking legal advice in this way greatly reducing the chances of subsequent problems.

Mediation

An increasingly common way for partners to reach a fair settlement is via mediation.

Unlike the adversarial nature of a court hearing, mediation provides a safe, neutral and confidential environment for both parties to air their views and seek possible solutions.

They are guided by a mediator – an expert in family law who is specially trained for the role – who will act impartially to help the couple find solutions.

The process is usually quicker and cheaper than a court hearing and the sessions can be arranged to fit in around work and child-care commitments.

Crucially, the constructive nature of mediation and its lack of confrontation help the couple work together constructively to reach a fair divorce settlement. Following any agreement at mediation, it is recommended that you seek advice from your solicitor to formally record your agreement in a consent order.

What does a fair financial settlement on divorce look like?

As we have seen, there are many factors that contribute to what is considered the best way to divide assets in a divorce. The legal process always seeks to achieve a fair solution given each set of circumstances and, should a case go to court the judge will have a wide range of discretionary powers to achieve this.

It is also important to be aware that what constitutes a financial settlement on divorce is a highly subjective issue. Even within one case, the two parties may have extremely different views on what would be a fair resolution.

Our experience at Wilson Browne Solicitors has shown us, however, that settlements couples arrive at together via negotiation (either through solicitors or a mediator) are much more likely to be considered fair by both sides than those that are imposed by a court.

Importantly, this can make it easier for the partners to move on with their lives while still working together constructively in the future should they have shared child-care responsibilities or business interests.

Where can I find out more about achieving a fair financial settlement?

At Wilson Browne Solicitors we are aware of how stressful the divorce process can be and how hard many people find it to make decisions over finance at a time of such emotional strain.

We are committed to supporting you in achieving a fair financial settlement on divorce without the need for a court hearing.

Our divorce solicitors operate with the highest levels of integrity and will work with tact, sensitivity, and empathy at all times.

With offices in Corby, Higham Ferrers & Rushden, Kettering, Leicester, Northampton, and Wellingborough, we can offer you a friendly face-to-face meeting at a convenient location. We will also be delighted to make home visits for clients with mobility issues.

For more information, please get in touch with our divorce solicitors by calling 0800 088 6004 or completing our online contact form.

More advice on Divorce from Wilson Browne Solicitors:

A Complete Guide to No-Fault Divorce

Important Tax Changes To Help Couples Who Divorce

Is There Such A Thing As A Good Divorce?