When a marriage breaks down, one of the main bones of contention will be deciding how the assets of you and your partner will be divided. Contrary to popular belief, a couple’s property is rarely split 50-50 because the circumstances will be different for each separating couple and depends on factors such as how long you have been together, what you both brought to the marriage and the number of children you have.
Asking a court to arrange the division of your property is an expensive option. It may be better, if both people agree, for the couple to use mediation or collaborative (non-confrontational) law processes to decide on the division of property. Among the assets you will need to decide how to split are:
- your home;
- savings; and
Before you come to an agreement, you should seek independent legal advice to ensure both parties are fully informed of their rights and responsibilities and that neither is short-changed in the divorce.
If you manage to reach an agreement with your partner, you can ask a court to make it legally binding by applying for a consent order. This confirms your agreement of how you want to divide up your assets and can also include arrangements for maintenance payments.
The draft consent order should ideally be drawn up by a solicitor and then signed by you and your partner. You both will also need to fill in:
- a notice of an application for a financial order; and
- a statement of information form.
These must be sent to the court with the draft consent order attached. A consent order costs £45, though you may be able to get help with court fees if you’re on benefits or a low income. Make sure you keep copies of all the paperwork.
The consent order will be approved and made legally binding by the court if the judge thinks it’s fair and reasonable.
If you can’t agree on how to divide your assets, you can ask a court to decide by applying for a financial order (formerly called an ancillary relief order).
Before making such an application, you must first attend a mediation information and assessment meeting with a family mediator to try to reach an agreement without going to court.
A financial order application will currently cost you £240 and can take up to a year to finalise. You may have to attend a court appointment and go to several court hearings.
You might want to apply for a financial order if you want:
- a lump sum payment;
- the ownership of a property;
- a share of your partner’s pension payments;
- maintenance payments to help with children or living expenses (a maintenance order can last: a limited period of time; until one of you dies, marries or enters into a new civil partnership; until one of you loses your job or gets better paid work);
- child maintenance (although this is often arranged by the Child Support Agency).
You’ll need to complete a financial order application form and send two copies of it to the court dealing with your case (make sure you keep copies).
How assets are divided
In dividing your assets, the judge will look after the welfare of your children first to try to ensure their housing needs and living expenses are met. S/he will also consider:
- the income, earning capacity, property and resources of each person;
- the financial needs, obligations and responsibilities of each person;
- the standard of living enjoyed by the family before the marriage broke down;
- the age of each person and the duration of the marriage;
- any physical or mental disability;
- the contribution made by each person to the welfare of the family, including looking after the home and bringing up children; and
- the conduct of each person, but only if it is so bad it would be unfair to ignore it (this is a consideration only in exceptional cases).
The judge may order that the family home be sold and the proceeds divided to allow both parties to find new homes (note though, the proceeds may not necessarily be split equally). Alternatively, the home could be transferred into the name of one person, with the other receiving a greater share of other assets, or one person could stay in the house, while the other keeps a financial share in it.
If you and your partner had a pre-nuptial agreement this will not legally bind the court’s decision but could be persuasive if it was properly drawn up (see Status of prenuptial agreements in divorce). Post-nuptial agreements are legally binding, as long as they have been properly constituted. The court, however, has the discretion to alter them where, for example, the welfare of the children would be jeopardised.
Scotland has a separate legal system from the rest of the UK, and different laws relating to the family. Couples who divorce in Scotland can, however, expect as fair a result regarding the division of property as their counterparts south of the border or in Northern Ireland.
In Scotland, a couple must have achieved a “fair and equitable” split of the matrimonial assets before a court will grant them a divorce. Generally, couples are encouraged to make a clean break, where possible, so that they are no longer financially reliant on each other. Parents will still have to provide financial support for their children. Generally, property is split equally, but the court can order as it deems fit.