Many people assume that if you divorce or dissolve a civil partnership, the assets should automatically be divided equally. However, this is grossly simplistic.
A 50:50 split may be appropriate in some cases, but in many cases there is a justification for diverting from equality and to award a greater share of the assets to one party in order to achieve a balance between fairness and meeting the parties’ needs, especially the needs of any minor children of the family.
When the court considers an application for a financial remedy order in a divorce or dissolution, it must take into account all of the circumstances of the case, and in particular the following factors set out in section 25 Matrimonial Cases Act 1975:
(a) the 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, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
(c ) the standard of living enjoyed by the family before the breakdown of the marriage;
(d) the age of each party to the marriage and the duration of the marriage;
(e) any physical or mental disability of either of the parties to the marriage;
(f) 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;
(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
This is not a precise science, it is more of an art. (My boss when I began practising family law in 1996 described it to me as a “dark art”, although that perhaps sounds a bit too Harry Potter-esque for family law.)
50:50 is the starting point, but not necessarily the end result. The judge has considerable discretion about to divide a couple’s income and assets between them in order to achieve an outcome that is tailor-made to meet the parties’ circumstances. This may therefore involve awarding one party a greater share.
There can be many reasons for this. For example:
- An equal split would not leave one party in a position to put a roof over their head. This would be particularly relevant in a longer marriage or in a shorter marriage where there are children whose needs must be put first (this includes step-children who are the court’s first priority along with children of the marriage, but it does not include adult dependent children or minor children by a new relationship. Their needs are not ignored, but they are not the court’s first priority).
- One party may have a lower income and this may justify them having a greater share, especially if they are not going to receive spousal maintenance.
- Splitting pension funds so that each party has pensions with same overall capital value may not meet the needs of one party, even if the aim is to achieve equal incomes in retirement. For example, women tend to live longer than men, and therefore it can be argued that a wife may need a greater share of the pensions as it has to last for longer. I can also recall a case where a wife had a reduced life expectancy and an equal share of the pension fund would therefore have given her an extremely high income compared to her husband, because she was not expected to live very long. In that case, the husband retained the bulk of the pensions because the wife didn’t need more pension than him. In cases involving pensions, it is often essential to obtain a specialist report from a Pensions On Divorce Expert (PODE) so that we can be confident about the correct percentage of the fund to transfer by way of pension sharing order.
- There can be arguments about contributions made by the parties. The court will generally regard contributions during a marriage (whether they are financial or non on-financial in nature) as being equal. The sharing principle says that both parties should share equally the assets accrued during the relationship (i.e. the matrimonial property) . This does not mean that they will necessarily get half as the court can divert from equality to meet their needs or perhaps where there has been a special contribution.
However, what about a case where an asset was brought into the relationship by one party? This is known as non-matrimonial property. One spouse may have owned a house before the relationship. He or she may have accrued a lot of pension before they began cohabiting. He or she may have received an inheritance during the marriage. This difference between matrimonial property and non-matrimonial property can justify one party receiving more than the other.
A recent example is the case of Standish v Standish, where judgment was recently handed down by the Supreme Court. In that case, the husband had transferred a portfolio of assets to the wife during the marriage for tax reasons. This portfolio was worth about £80 million by the time the parties’ divorced. The Court of Appeal and then the Supreme Court decided that the 75% of the assets transferred were non-matrimonial in nature and therefore only 25% was subject to the sharing principle. It is possible for non-matrimonial property to become matrimonial (a process called “matrimonialisation”), but that had not happened here. The husband therefore retained 75% of the assets and shared the remaining 25% with his wife. The Supreme Court made it clear that the sharing principle only applies to matrimonial property.
Standish involved parties arguing about a pot of assets worth £80 million and the wife still received many millions as a result of the Supreme Court’s decision. However, in most people’s cases, we are talking about dividing a far smaller pot of assets, and an equal split of the matrimonial property may result in one party’s needs or their children’s need not being met.
In these types of case, the requirement to meet the parties’ and their children’s needs can result in outcomes that may seem unfair as one spouse, often the wife, receives more of the matrimonial property. There are ways to redress this; for example in a case where there is not enough equity in the family home to justify it being sold as the children’s housing needs would not be met, then the house may be transferred to the wife. In some cases, the wife is unable to pay the husband a lump sum for his interest in the property. This is very unfair to the husband. He can therefore be compensated by receiving a charge against the family home (similar to a mortgage) in return for effectively lending the wife his share for the time being so that she is able to meet her and the children’s housing needs. She will eventually have to pay him off, either by paying him his share back or selling the house so that he receives his share out of the sale proceeds. This is usually triggered by the first occurring of:
- the wife’s death;
- The wife’s remarriage or civil partnership
- the wife’s cohabitation with another person for a fixed period (usually six months)
- the children reaching the age of q8 or ceasing full time secondary education, whichever is the later.
- Further order of the court.
The purpose of the further order provision is to allow the husband to seek payment earlier if there has been a significant improvement in the wife’s circumstances, such as inheritance or lottery win or just a radical improvement in her circumstances, in which case early repayment might be justified. It does not allow him to make a further claim against such windfalls though.
To some husbands, it may seem very unfair that their wives receive a greater share than they do, but it simply reflects the fact that women tend to be financially less well off than men. A Sky News blog here illustrates why women may come off worse financially in a divorce (although I would say that in its description of a the case of a women called Isobel, I simply don’t understand the outcome – based on the facts set out in the blog, she should have got more than half to reflect her husband’s much higher income and earning capacity).
The strength of the current law is that it enables family lawyers and judges to craft an outcome that is designed to fit the parties’ circumstances. The downside of the law is that it is sometimes difficult to predict the outcome. The Law Commission is waiting for the government to decide if it should propose reform; one option would be to create a matrimonial property regime that restricts the judges’ current very wide discretion.
There are cases when an equal split is justified. The simplest example of such a case would be one where the parties have the same or similar incomes, no dependent children and their assets were all accrued during the marriage. However, the reality is that even in this day and age, wives often earn less than their husbands and have less capital, so a diversion from equality is often appropriate.
6 July 2025
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