What is a Wife Entitled to as her Divorce Financial Settlement
As family lawyers, we understand how important it is to know what a wife will be entitled to as her divorce financial settlement. That information may influence your decision to separate or help you decide on the timing of your separation. Even if you know that whatever the size of the divorce financial settlement you will be starting no-fault divorce proceedings it can help to understand what you may receive so you can start to plan for your future.
Online and London Family Law Solicitors
For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
Divorce financial settlements
One of the things that divorcing couples find most hard to come to terms with is the lack of certainty over the divorce financial settlement. That’s because divorce solicitors don’t talk about divorce settlement ‘entitlements’.
Entitlement isn’t part of most divorce solicitors’ language as neither a husband nor a wife is entitled to a specific amount or a minimum award as their divorce financial settlement. Instead, in every solicitor-led negotiation or family mediation, or financial court proceedings, the focus is on the needs of any dependent children and the reasonable needs of the husband and wife.
In practice, that can mean that the wife gets to stay in the family home until the children have finished their secondary education or the wife gets to keep the family home and ends up with more than 50% of the assets. Whilst it is frustrating to hear a divorce solicitor say that ‘it all depends’ the reality is that divorce financial settlements vary from family to family because there is no set formula to work out entitlement.
Is a wife entitled to half?
In divorce financial settlement proceedings, the court will start from the premise that the husband and wife are each entitled to half the family assets. That presumption can easily be displaced meaning the wife could get very little or a lot more than 50%.
Factors that influence a wife’s claim to more than half
A wife may end up with more than half the assets where she is the main carer for the children, the family assets are limited and she needs to provide a home for the young children. There are other reasons why a wife may end up with more than half the assets. For example, if a wife is wealthy and she asked her husband to sign a prenuptial agreement before their short marriage. These reasons could equally justify a wife ending up with over half the family assets.
How does the family court decide on the appropriate divorce financial settlement?
If there is no automatic entitlement to a minimum divorce settlement how does the court decide on what the wife will get? The answer lies in legislation and statutory criteria known as the Section 25 factors. A family judge in financial court proceedings will go through those factors and apply them to a family situation and make a financial court order that balances the competing claims of the husband and wife.
In solicitor negotiations to sort out a divorce financial settlement your divorce solicitor will go through a similar process to come up with likely court outcomes and to help a husband and wife to reach a compromise. If an agreement can be reached that agreement is then converted into a financial court order and a family judge is asked to approve it. Normally a husband or wife do not have to attend a court hearing if their financial court order is agreed upon and they just want a judge’s approval.
The Section 25 criteria
The Section 25 criteria are contained in the Matrimonial Causes Act 1973 and include:
- The income, earning capacity, property, and other financial resources that a husband and wife have, or is likely to have in the foreseeable future. This includes 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 husband or wife to take steps to acquire
- The financial needs, obligations, and responsibilities that the husband and wife have or are likely to have in the foreseeable future
- The standard of living enjoyed by the family before the breakdown of the marriage
- The age of the husband and wife and the duration of the marriage
- Any physical or mental disability of either the husband or wife
- The contributions made by the husband or wife or likely to be made in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family
- The conduct of the husband or wife if that conduct is such that it would in the opinion of the court be inequitable to disregard it
- The value to the husband and wife of any benefit (such as a pension) which, by reason of the end of the marriage, the spouse will lose the chance of acquiring
Assessing entitlement in divorce financial settlement proceedings
The court applies the Section 25 factors to the personal and financial circumstances of a husband and wife when making a financial court order after a contested court hearing. In divorce solicitor negotiations a similar process is followed so a husband or wife gets an idea of the range of orders that a court might make if they were to apply for a financial court order. That information enables a husband or wife to engage in negotiations and hopefully come to a resolution without the expense of contested financial settlement court proceedings.
Online and London Family Law Solicitors
For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
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