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Entitlement on Divorce








This is usually the first question I am asked when clients come to see me for advice following the breakdown of their marriage or relationship. 

The prospect of having to be more financially independent is a daunting one to say the least!  You may worry about how you will survive without the financial support of your spouse or if you were the main breadwinner, or how you will afford your commitments to your spouse and the children.

There is no straight forward answer to this question as the facts and circumstances vary from case to case. 

The principles adopted by the court are that the finances should be divided in a fair manner. 

The Matrimonial Causes Act 1973 sets out the guidelines the courts must consider when deciding what a fair settlement should be. 

The most common factors are as follows:

·        Housing needs of the parties and any children of the family

·        Plans to remarry or cohabit

·        Length of marriage

·        Future earning capacity

·        Age of the parties

The following scenarios will often lead to different settlement outcomes:

1.      Long marriages where the husband has been the ‘breadwinner’ and the wife has been the ‘homemaker’.

The courts like the parties to become as financially independent as possible. They will ensure that the wife receives some assistance to enable her to ‘get back on her feet’ following a divorce. The level of financial support will vary from case to case.

The court has to take into account the fact that the wife has sacrificed her career to bring up the children and wants to ensure that she is not penalised for this. The court will look into her future earning potential and what steps she can take to maximise her income with a view to becoming self-sufficient in the long term. 

The concept of a ‘meal ticket for life’ is extremely rare and spousal maintenance is usually awarded for a term only to enable the wife to adjust. The wife will generally receive a larger share of the capital to meet her reasonable needs.

2.      Marriages with very young children


If your children are very young and at school, then the likelihood is that one party stays at home as the primary carer of the children.  It may not be cost effective to work because most of your earnings will be swallowed up in child care fees.


Once children commence their primary education it is generally expected that the primary carer will return to work to fit around school hours. The income can often be topped up with tax credits.


The court has a duty to give first consideration to the needs of any children of the family so they will often make orders that will defer the other party’s interest in the property until the youngest child ceases full time secondary education. 


3.      Short marriages and no children


In these cases, the parties will usually be put back into the position they were prior to the marriage.


Generally, the finances will be divided equally and any assets each party had acquired prior to the marriage is disregarded and not deemed a ‘marital asset’. In some cases, one party may have owned their own property prior to meeting their spouse who made no contributions towards the household expenses.  In this scenario the non-owning spouse may not automatically be entitled to a half share of the property.


The above are just a few examples of the differing scenarios. 

There are many other factors that the court has to consider when determining a fair settlement.  The courts do prefer parties to reach an agreement.

 In my experience a party is more likely to abide by an order that has been made by agreement rather than an order that has been imposed upon them. 

There are many different ways of reaching an agreement with your spouse, either through mediation or correspondence between solicitors.

The first step is to come and see me for a free initial consultation.

Please contact me on 01827 311411



Louise Dewell

Head of Family Law at Rutherfords LLP



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