Before a married couple can decide how assets should be divided, firstly they need to determine which assets are matrimonial and non-matrimonial. Only then can the court consider what division would be appropriate.
Matrimonial assets
Matrimonial assets are financial assets that you and your spouse have acquired during the course of the marriage such as property, savings, personal belongings and pensions. These are the assets that will be shared between the spouses.
Non-matrimonial assets
Non-matrimonial assets are financial assets acquired before or after the marriage and are treated differently to matrimonial assets. These assets must not have been mingled during the marriage – for example, if a spouse has purchased a car with personal inheritance during the marriage.
How does the court make a decision?
There are no rules regarding how the assets should divided on divorce, only guideline. The starting point is usually for matrimonial assets to be divided equally. The court will also take into account Section 25 of the Matrimonial Causes Act 1973 which sets out a checklist of factors that the court will apply to each individual case. The Section 25 factors are as follows:
- The welfare of any dependent children
- Financial needs, obligations and responsibilities of each spouse
- The financial resources available to each spouse
- The standard of living enjoyed during the marriage
- The age of each spouse and the duration of the marriage
- Whether a spouse suffers from a physical or mental disability
- The contributions which each spouse have made or are likely to make in the foreseeable future
- The loss of any chance to acquire benefits, such as loss of pension rights
- The conduct of each spouse, if that conduct is such that it would be unfair for the court to disregard it – for example, dissipation of joint assets
The court have a wide discretion when applying these factors, but the aim is to divide the assets fairly. Fairness does not necessarily mean an equal split. The key point is that the court need to ensure that the needs of both spouses and the needs of the children are met when deciding how assets should be divided. It is therefore possible that the court will make an order where there is an unequal division of the assets.
For advice on how assets are divided on divorce, please contact a member of our Team.