What assets are you entitled to on divorce?

One of the most common questions people ask when going through a divorce is: What am I actually entitled to?

The answer is rarely as simple as splitting everything down the middle. The court follows a structured approach to decide how assets should be divided, taking into account fairness, needs, and the nature of the assets themselves and how and when they were acquired.

How the court decides

The court follows a two-stage process:

1. Computation – identifying and valuing the assets and considering which might be marital or non-marital.  All assets in which either party has an interest, whether in the UK or abroad, must be disclosed including property, savings, pensions, investments, businesses and liabilities.  The court also considers income and earning capacity and, in many cases, mortgage capacity.
2. Distribution – deciding how those assets should be divided between the parties.

Marital and non-marital assets

Before deciding who gets what, the court must determine which assets belong to the marriage and which are separate.  There are two distinct classifications of assets;

• Marital assets are those built up during the marriage through the parties’ joint endeavours such as the family home, joint savings and pensions accrued during the marriage.

• Non-marital assets may include assets owned before the marriage, inheritances, gifts or assets accrued after separation, particularly where they have been kept separate.

This distinction is important because it affects what each party can reasonably expect to receive on divorce.

The sharing principle and needs

The starting point in distribution is the sharing principle.  Marital assets are usually divided equally, and non-marital assets are usually retained by the party who owns them, unless there is good reason to depart from that position.

The most common reason is based on needs, including:

• the need to rehouse; and
• the need to meet income needs, both now and in retirement.

Where there are children under 18, their welfare is the primary consideration and may justify an unequal division of assets, particularly in relation to housing.

In deciding what is fair, the court also considers other factors such as the length of the marriage, the ages and health of the parties, their respective contributions (both financial and non-financial), and the standard of living enjoyed during the marriage.

Can non-marital assets be considered?

Even assets that are technically non-marital assets can sometimes be considered if circumstances require.  However, such assets will be considered as a resource and not something to which the sharing principle should apply.

For example, if the marital assets are insufficient to rehouse both parties, but one party has a significant inheritance, the court may take that inheritance into account so that the other party can retain more of the equity in the family home to meet their housing needs.

A similar approach applies to pensions.  Where some of a pension was built up before the marriage, that part may be treated as non-marital.  However, if the other party cannot meet their reasonable needs in retirement without the non-marital part of the pension, that part may still be shared to ensure a fair outcome.

Non-marital assets can also become “matrimonialised” if they are treated as part of the marriage, for example by being used to buy or improve the family home or to support the family’s standard of living.

So, what are you entitled to?

In broad terms:

• All assets in which either party has an interest, whether in the UK or abroad, must be disclosed and considered.
• You are usually entitled to half of the marital assets, unless needs justify a different outcome.
• You are not automatically entitled to your spouse’s non-marital assets.  However, they may be taken into account if your needs cannot be met otherwise.

Every case depends on its own facts, but understanding these principles can help manage expectations and support constructive negotiations.

For further advice and information, please contact B P Collins’ family team at enquiries@bpcollins.co.uk or call 01753 889995.