The question of how assets are divided on divorce rarely has a precise answer. While there may well be a presumption that assets should be split on a 50:50 basis, this is certainly not a hard and fast rule. We’ve previously examined instances where a court may depart from the idea of splitting assets down the middle. Here we look at when a court may be more likely to apply a 50:50 split. In doing so we should point out that the ‘yardstick of equality’ (as family law judges refer to it) only goes so far. Every divorce is decided on its own set of facts, and courts are empowered to use their discretion to achieve a financial settlement that’s fair in all the circumstances.

Can We Decide How To Split Assets Without A Judge?

Yes. Most disputes about financial settlements never reach court. The cases that do – and that are therefore reported – are often ‘big money’ cases where the amounts at stake are so significant that it is worth the parties shouldering the risk of large legal fees. Other cases that reach court might be those that raise novel or complex points of law that require a judicial opinion.

The reality is that most cases we, and other family lawyers handle are resolved privately between the parties. Solicitors on both sides use previous court decisions to inform their advice to you about what you should seek in terms of a financial settlement. This includes guidance on the circumstances in which a court might order a 50:50 split and those when it might not.

What If We Can’t Agree How TO Divide Assets?

If there is no agreement the court will decide the terms of a financial settlement. Decisions will first and foremost be based on the principle of fairness we’ve mentioned. The courts will consider:

  • The income, earning capacity, property and other financial resources of each spouse or civil partner
  • The financial obligations each of the parties to the marriage has or is likely to have in the foreseeable future
  • The standard of living enjoyed by the family before the breakdown of the marriage
  • The age of each party
  • The duration of the marriage
  • Any physical or mental disability of either of the parties to the marriage
  • The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family

Note that where there are young children, the court’s first concern will always be their welfare and how their needs will be met.

Does The Length Of My Marriage Matter When Dividing Assets?

One of the factors listed above is duration of the marriage. When it comes to splitting assets, the length of your marriage can be crucial in determining whether assets will be split equally or not. A 50:50 split is more likely when there has been a long marriage, and the resources are sufficient to meet the needs of the family. Where there is a short, childless marriage of, say, less than two years the courts are less likely to order a 50:50 split.

P v Q (2022) – When Assets Are Divided Equally

The way a long marriage can dictate asset division was demonstrated in the 2022 case of P v Q. There, the matrimonial pot of assets was about £6million, two thirds of which was tied up in a company in which both husband and wife were involved. Both parties argued that they should each receive approximately 60% of the available assets (as opposed to 50%). The wife argued that the husband continued to receive a substantial salary from the company (she did not). The husband on the other hand argued that post-divorce the wife would have the advantage of controlling most of the marital property (the capital assets like property). He on the other hand would still be largely reliant on the potentially unpredictable performance of a company.

The judge indicated that in a long marriage like this – where there were no issues of conduct or disability to consider – then as a starting point in the division of assets – fairness and equality (a 50:50 split) ‘usually ride hand in hand’. Referring to an earlier case he confirmed that as a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so.

In the circumstances of this case the arguments made by both husband and wife to deviate from an equal split had the effect of cancelling each other out. As a result, a split of more or less 50:50 was ordered.

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