It is not a surprise that there are many misconceptions as to the reality of divorce proceedings, particularly financial matters arising from separation. Family law is complex and, in most cases, not always straightforward. There is no strict formula as to how matrimonial finances are determined, rather a wide statutory guidance, which is open to the broad interpretation of the English and Welsh courts which in turn brings us to the first misconception as below:
This is a common misconception and is entirely inaccurate as gender alone simply does not determine how the matrimonial finances are to be divided. It is likely that this misunderstanding has arisen over time following years of men generally being the ‘breadwinner’ and the woman being the homemaker and primary carer for the children. The starting point with matrimonial finances is that of equality (50/50) but the court can depart from such when referring to the statutory guidance (s25 Matrimonial Causes Act 1973) predominantly when determining what is required to meet the needs of the parties. This may consequently result in the party of lesser means receiving a slightly greater share of the assets so as to fulfil their needs.
Whilst your decree absolute (under the older law) or final divorce order (under the new law from 6 April 2022), may legally terminate your marriage, this does not mean that your former spouse cannot make a financial claim against you. The only way to sever financial ties is by way of a financial order within divorce proceedings which is essentially dealt with separately to divorce proceedings. It is important to bear in mind there is no time limit to when finances can be dealt with, and claims can be made long after the decree absolute/final divorce order have been made.
The position in marriage with the family home is that it is a marital asset, regardless of who holds the legal title, and the non-owning spouse will presumably have a 50% beneficial interest in the property (to simplify, 50% of the available equity). As such, simply because one spouse holds the legal title will not extinguish the claims of the non-owning spouse.
As we touched upon above, the starting point with matrimonial finance is equality but this is very much a starting point. If preserving your pension is your main priority, it may be that there are other alternatives to consider providing a fair outcome. This could include the possibility of ‘off-setting’ the value required to equalise pension provision against other assets such as if there is sufficient capital elsewhere to do so.
It is not uncommon for parties who have lived together for an extensive period of time to assume that the same laws apply upon separation to those who divorce. This is not the case and there is no legal recognition of the ‘common law spouse’. If there is a dispute upon separation, such as in relation to property, this will be dealt with by entirely separate legislation to that if you were married. Further, in the absence of marriage, any claims you may have hoped to make against your partner are extremely limited. A good example of the implications of this would be if one party had heavily relied on the other throughout the relationship for income. If the parties were married, the party who relied upon the other for income may choose to pursue spousal maintenance but unfortunately there is no option or equivalent to do so if the parties were never married.
For further information, please contact Jessica Inman or another member of our Private Family Law Team on 01740 646000 or fill in an online enquiry form and someone will be in touch.
Call: 01740 646000