What are my rights on divorce or separation?
What am I entitled to?
This is the question that most people ask us when going through a divorce or separation. You may be either thinking of leaving your partner or have been told that your partner is leaving you and alongside the emotional distress this can cause, you will be concerned about where you are both going to live, how it will impact on your children, how much you will have left to spend per month, how you can afford to live and what will happen to your pension, savings, inheritance and a hundred other things.
Your first point of call might be to search on the Internet, or visit your local Citizens Advice Bureau or solicitor. If you have done one of these things you will see that getting the exact answers you are looking for is very difficult.
There are several reasons for this:
- The court has a duty to take into account all the factors of the case. This gives them the absolute flexibility to deal with each scenario on a case-by-case basis.
- What one court decides on one day could be very much different to what another court decides, given exactly the same information.
- A solicitor can only give accurate advice when they have the full picture. They need a full financial disclosure to properly assess your case. This is highly unlikely to be available in the initial consultation.
- A solicitor can only advise one of you. If you go together they have to send you away. The advice given by different solicitors can and often does vary dramatically.
- The only fixed calculation in the whole area of family law is the child maintenance calculation. Everything else is open to negotiation and judgement. (Even this child maintenance calculation can be challenged in court).
So with this as a background and piling on all the caveats that are possible, we have tried to produce a rough guide to what you may be entitled to, to help you start your negotiations. You can of course contact us with any questions.
Married or Co-habiting
This makes a huge difference to your situation. If you are not married, you have far fewer rights under law. There is no such thing as a common law marriage in the UK. What is yours is yours, what is your partners is theirs and anything jointly owned is up for negotiation.
If you are not married you do not have to do a full financial disclosure, although in the interests of openness and honesty you can both agree to do so. Otherwise you only need to disclose your joint assets. These will usually be a house, joint bank accounts, or items like a car or computer. When deciding how to divide up your joint assets, priority should be given to the children and then the needs of each party moving forwards.
If you are married there are several factors that a court could take into consideration. The overwhelming priority is the wellbeing and needs of any children. Children are counted as being under the age of 18, although of course any parent will know that you need to still help them through university and sometimes beyond!
It does not matter if the children are of the marriage or not. All children are treated equally for this.
Having made a full financial disclosure a court will start with a 50/50 split of all assets. This is where you should start as well, although being family law, there are of course exceptions to this general rule!
Starting with this yardstick of equality, the court can decide to dramatically change the 50/50 principal, depending on a number of factors.
Lets have a look at these factors here:
1.The welfare of the children. This is paramount and the first consideration of the court.
2.Financial needs, obligations and responsibilities which each of you has, or is likely to have in the foreseeable future.
3.Income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future.
These are the main considerations and, usually, by taking these into account the court will be able to decide on the division of assets. In other cases, they will take the following into consideration as well:
4.The standard of living enjoyed by the family before the breakdown of the marriage.
5.The age of each party to the marriage and the duration of the marriage.
6.Any physical or mental disability of either of the parties to the marriage.
7.The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family including any contribution by looking after the home or caring for the family.
8.The value to each of the parties to the marriage of any benefit which by reason of the dissolution of the marriage that party will lose any chance of acquiring.
9.The conduct of each of the parties if that conduct is such that in the opinion of the Court it would be inequitable to disregard it.
So, there is the most accurate answer we can give to your question, “what am I entitled to?” Without doing a full disclosure, no one can give you the answers to your questions.
Of course, your divorce expert, solicitor or family law barrister can also help you to reach an agreement, without the expense and stress of going to court. Contact us for further information.