How Does the Family Court Decide Who Get What in Divorce?
Going through a divorce can be an incredibly stressful and uncertain time. However, if you find yourself in that situation, you’re by no means alone. According to the latest Family Court statistics issued by the Ministry of Justice, a total of 110,770 divorce applications were filed and 103,501 final orders granted in 2023.
For many people, one of the biggest issues during a separation will be splitting finances, property and other assets. Deciding who gets what can be fraught with difficulty, especially if the relationship is no longer amicable. Because every situation is unique, many former couples find it hard to reach a mutual agreement about who gets what.
What factors play a role in the court’s decision?
In England and Wales, Section 25 of the Matrimonial Causes Act 1973 gives the family court the authority to make orders regarding the division of assets, including payments from one party to the other. The court will consider a number of factors when making its decision, including:
1. The welfare of any children is a primary concern as the court must ensure that their needs are met.
2. How much each party earns or has the capacity to earn, both now and in the future. This can be complex, as if children are involved, the primary carer may find their ability to work limited to in-school hours, thereby reducing their future earning potential.
3. The financial requirements and obligations of each party, both now and in the future.
4. Any disabilities (either physical or mental).
5. The duration of the marriage. The court may be more inclined to favour an equal split following a lengthy marriage, where a shorter marriage could lead the court to consider each person’s contributions during the relationship.
6. The age of both parties. This is more pertinent when divorcing couples are older, as factors like pensions must also then be considered.
7. The contributions made or likely to be made by each party to the family’s welfare (such as maintaining the family home or taking care of any children).
8. Any financial loss either party will incur as a result of the divorce (for example, access to the other person’s pension).
9. The standard of living the family enjoyed prior to their separation.
10. In limited circumstances the court will also consider the conduct of one or both parties. This is only a factor if disregarding that conduct would be unfair to the other party.
What’s the process?
The process of getting a court mandated decision as to who gets what can be lengthy. The divorcing couple will first need to submit a financial remedy application. It’s vital that this document is completed accurately and in full. Our experienced family solicitors can help you to fill in and submit this document to the appropriate court.
We can also assist you across the next three stages. Once your application has been submitted, both parties must complete a financial statement outlining current financial obligations such as rent or mortgage payments along with other living costs. You’ll also need to provide evidence of your income, debts and information about any personal possessions that are worth more than £500.
You’ll then attend a first appointment with the judge to discuss your application.
Stage two is a financial dispute resolution appointment, which seeks to reach an agreement without a final hearing being necessary.
If an agreement can’t be reached, a final hearing will be held so the judge can decide how finances will be separated.
This process can be lengthy, with several months between each stage. We’re here to help you navigate this process and can provide mediation to help you reach an agreement without going to court. Get in touch to find out more.