One of the most common questions people ask when facing divorce is: What share of the assets will I get? Many expect there to be a set formula or fixed percentage split. In reality, the law works very differently.
The Family Court has a wide discretion to make financial remedy orders that are fair. That means judges can shape outcomes based on the facts of each case, guided by the principles in the Matrimonial Causes Act 1973 and the related case law.
Often what the Court is likely to consider Fair differs from what couples think is fair, hence it is important to try and negotiate rather than have a judge based solution forced on you.
What “discretion” means
Discretion simply means choice within a framework. Judges must follow Section 25 and the case law, which sets out the factors they have to consider. But within those boundaries, they have to weigh up the evidence the parties present and decide what is fair.
The court has a very wide discretion to do the right thing. That makes outcomes flexible, but also less predictable. There is no one solution that fits all.
Mark Studdart, a Partner in the Family Team at Gordons Partnership suggests that “That’s why it’s often said you could give the same facts to ten different judges and get ten different outcomes”.
Why there is no fixed formula
Unlike child maintenance, which uses a set calculation (limited to the first £156,000 of gross income), financial remedies in divorce are not determined by a strict formula. That is because every marriage is different. Length of the marriage, the presence of children, the age and health of the parties, the standard of living, and the types of assets involved all affect what is fair.
A rigid formula could not account for this variety. Instead, the law leaves room for judges to tailor decisions to the facts in front of them.
The importance of children’s needs
The needs of any children will be considered first. If children require housing or maintenance, the court first considers how those needs can be met before considering the adults. ThHowever, whilst a child’s needs are the first consideration they are not the paramount consideration and the Court will look at all the needs of the parties. The court has to consider other factors, such as achieving a clean break.
In some cases, Mark indicates that “parties might agree it is fair that one party will stay in the family home until the children finish school, whereas a judge might instead order an immediate sale. There are many different ways a court might approach the resolution of financial remedy claims”.
Examples of different outcomes
The Court’s wide discretion explains why outcomes can differ between cases that look similar at first glance. Two couples might both have a house and pensions, but if one has young children and the other does not, the court’s focus is likely to be different.
Equally, a short marriage may lead the court to put more weight on what each person brought into the relationship, while long marriages tend to be treated more as a partnership where assets are pooled and therefore all the assets are used to meet needs both immediately and in the future including retirement.
Mark explains that “In most cases where there is a marriage of reasonable length the starting point is to aim for equal income at retirement, typically age 67… If the parties are younger or the marriage was short, the court may instead look at equalising capital value, or even exclude some pensions from the pot…In very short marriages, the court may not focus on needs at all. They may just look at what each person contributed and let each party take out what they put in – unless children are involved”.
Why this flexibility matters
Discretion can feel unsettling, because it means no lawyer can promise an exact result at the outset. But it also means the court is not trapped by rigid rules. Judges can adapt to real life circumstances and deliver an outcome that genuinely fits the case.
This flexibility is what allows the court to deal fairly with the wide range of situations it sees.
The value of legal advice
Because outcomes are not fixed, clear advice becomes even more important. Family lawyers use their experience of how courts apply discretion to guide clients. They know which arguments judges are likely to accept and which are unlikely to carry weight.
This helps clients understand the range of possible results and prepare for negotiations or hearings with realistic expectations. It reduces stress and avoids wasted time on points that do not help.
Facing the process with clarity
Understanding that there is no set formula, and that judges have discretion, helps people approach divorce with a clearer perspective. While this can feel uncertain, it also means the law has the flexibility to do justice in individual cases.
At Gordons Partnership, we explain what that discretion means in practice and guide clients towards sensible, proportionate outcomes. Our aim is to make a complex process feel clearer, so people can move forward with confidence.
About the Author
Partner
Tel: 01483 451 900
Email: Mark@gordonsols.co.uk