Divorce is not only an emotional separation; it is also a financial one. When two people go their separate ways, questions about money and property quickly come to the surface. Who stays in the house? Will there be maintenance payments? What happens to pensions or savings built up during the marriage?
For many people, this part of the process feels daunting. The truth is that there is no right answer or fixed formula. The family court applies principles of fairness to each individual case, taking into account the particular circumstances of the couple and their children, and this leads to different outcomes for different families.
The law behind the decisions
Mark Studdart, a Partner in the Family Team at Gordons Partnership, describes the starting point:
“The family courts in England and Wales powers originate from the Matrimonial Causes Act 1973, and in Section 25 there’s a list of criteria that the court has to consider when dealing with applications for what are called financial remedies. These include orders for maintenance, lump sum payments, property adjustment, sale of property, and pension sharing or attachment.”
This means that when someone applies to the court for financial orders, the judge is bound by Section 25 and judicial interpretation of the statute, but within that framework, the judge has a great deal of discretion to achieve a fair outcome.
The factors listed in Section 25 include:
- The income, earning capacity, property and other financial resources of each party, both now and in the future.
- The financial needs of any dependent children.
- The standard of living enjoyed during the marriage.
- The age of each party and the duration of the marriage.
What counts as a financial remedy?
The court has the power to make a variety of orders under the Act. These include:
- Maintenance: ongoing payments from one spouse to the other, or for the benefit of a child.
- Lump sums: a single transfer of money.
- Property adjustment: changing the ownership of property or ordering its sale, such a house or shares.
- Pension sharing or attachment: dividing pension assets between the parties.
Under the Act, the court can look at each of these options and decide which combination provides a fair outcome. Collectively, these orders are referred to as financial remedies.
What the court focuses on
When making these decisions, the court looks first at the financial needs of any children, typically this will revolve around their housing and educational needs. Children must be dependent i.e under 18 or still in education or training.
The court then considers the needs of the parties. This includes housing, income and savings today, as well as pensions and earning potential in the future. It considers how (if possible) those needs can be met from the current and future resources. The aim is to find an arrangement that is fair now and workable in the years ahead.
The role of fairness
There is no automatic percentage split of assets. Instead, the law gives the court a wide discretion. The judge decides what fairness requires in the particular case.
This flexibility means the outcome for a short marriage without children can look very different from a long marriage with children and complex assets. The same law applies, but the emphasis on different factors shifts depending on the facts.
Mark states that
“What’s fair for one person may not feel fair to another. It’s often said that if both parties are equally unhappy with the result, then it’s probably fair”.
Why outcomes vary
Because so many factors must be balanced, outcomes vary from family to family. Even when situations seem similar, small differences in income, property value or the age of children can change the result.
This variation is not a weakness in the system. It reflects the fact that fairness depends on real life detail, not a formula.
Mark further suggests that
“If you and your spouse can agree on a fair arrangement that meets your financial needs, then you avoid the risk of a judge coming up with something completely different and which both parties do not want”.
The importance of legal advice
Mark indicates that
“Family lawyers can give really helpful advice on how to present your case and set out your realistic needs for both income and capital”. We know how courts tend to view different arguments and which points are worth raising. We also give sensible advice about what a fair outcome might look like in practice, do our best to identify the real issues early and say when points might be unhelpful.”
This helps clients prepare for the likely range of outcomes and focus on what matters most. It also reduces stress by avoiding time and cost on points that are unlikely to succeed.
Making sense of the process
The term financial remedies may sound technical, but in practice it means the court examines income, housing, savings and pensions needs, then decides how to share them so that needs are met fairly.
The welfare of children always comes first. After that, the court works to balance the resources of both parties so each can move forward after the divorce. Every case is unique, which is why clear legal advice at the start makes such a difference.
Clear advice when it matters most
At Gordons Partnership, our approach is to make the process straightforward. Divorce is not only about ending a marriage. It is about protecting homes, finances and children now and in the future. Knowing what the court considers is relevant, and how judges make decisions, helps people feel more in control at a difficult time.
If you are separating and want practical advice about your financial position, we are here to listen and to help.
About the Author
Partner
Tel: 01483 451 900
Email: Mark@gordonsols.co.uk