Divorce and family lawyers

The English court has very wide powers to order what it thinks is a fair financial outcome for each couple's circumstances in the event of divorce.  The financial orders that the English court can make include:

• One spouse to pay the other a lump sum(s) of money.
• A transfer of property (for example, if a property is held in one spouse's name it can be transferred into the other spouse's name, or a joint asset can be transferred into one party's name only).
•  A pension share where part of one spouse's pension is transferred into a separate pension in the other spouse's name.
• Spousal maintenance (sometimes called spousal periodical payments, and in some other countries called 'alimony'), which are regular payments out of one spouse's income where the other spouse needs this for their own income needs.
• In some circumstances, child maintenance.  Child maintenance is usually dealt with by the government's Child Maintenance Service where an agreement cannot be reached, but it can instead be dealt with by the courts if one of the parents does not live in England or if the payer's annual income exceeds £156,000 gross.  Orders can also be made by the court for the payment of school fees.

There is no fixed formula for working out a division of assets in a divorce. The English court has a wide discretion to decide on what it thinks is a fair financial outcome, having regard to all the circumstances of the couple.  

The court's first priority will be to ensure that any children have their financial needs met. Beyond that, the court's starting point is that all assets generated during the relationship (which will usually include any period of cohabitation prior to marriage where a relationship has moved 'seamlessly' from cohabitation to marriage) should be shared equally unless there is a good reason to depart from equal sharing.

Reasons to depart from equal sharing might include:

• Non-matrimonial property.  Matrimonial property is built up during the marriage through the active work of one or both spouses, whereas non-matrimonial property comes from a source which is external to the marriage (for example, one spouse might have already owned it when the spouses began their relationship, or one spouse might have inherited it during the marriage and kept it separate from matrimonial property). Non-matrimonial property will usually not be shared equally but will instead be kept by the spouse who owned it throughout the marriage, but one reason why it might be divided is if it is required to meet 'needs' – see below.
• A pre- or post-nuptial agreement which specifies that certain assets are not to be shared (see are pre-nups legally binding?).
• Needs. The court ensures that, wherever possible, each spouse has their financial needs  met. Quantification of those needs is influenced by (though not determined by) the standard of living during the marriage and the financial resources available. If the standard of living during the marriage was high, needs will be assessed more generously and it is possible to include in the assessment all manner of things that the spouses are used to (for example, additional properties, staff, holidays and leisure, designer clothes etc.).

When dividing assets in a divorce, the court will try to achieve a 'clean break' between the spouses if it is affordable and fair, i.e. it will not wish to see spouses continue to co-own assets following their divorce, and it will consider capitalising any spousal maintenance (i.e. ordering the payment of a lump sum instead of ongoing payments out of income). 

The family house (or the main family home if there is more than one) is regarded by the courts as being such a central feature of a marriage that even if it was owned by one party prior to the marriage or was received as a gift or inheritance by one party during the marriage, the value of it can still often be regarded as a 'marital' asset that each spouse has claims to upon divorce and it can therefore be shared equally. 

This does depend, however, on the circumstances of each individual case, including whether there are children, whether there was a pre-nuptial agreement, the length of the marriage (as mentioned above), the length of time that the property was the family home, and whether there are other assets available to meet both spouses' housing needs.   

Even if the court thinks it is fair that the value of the family house should be split equally following divorce, that does not always mean that the house needs to be sold and divided. There may be other assets from which to compensate the spouse who is not retaining the family home.

For many couples, pensions might be the main asset aside from their family home.

A pension can only ever be in one person's name (that of the 'member spouse'), but there are three main ways in which the English court might deal with a private (i.e. non-state) pension as part of a divorce-settlement. Which options are available and which is regarded by the court as fair in the circumstances will depend on the individual case:

• A pension-sharing order.  This, at the time of the divorce, transfers a percentage of the pension benefits away from the member spouse's pension and into a separate pension for the other spouse.
• A pension attachment/earmarking order.  This keeps all of the pension in the member spouse's name but requires the pension scheme to make a payment or payments to the other spouse when the pension become payable.
• Offsetting.  The non-member spouse does not receive any pension benefits but receives other assets instead.

Sometimes it is necessary to obtain input from an actuary to help inform what pension order is fair and appropriate. This depends on the type of pension and the parties' ages, amongst other things.

Foreign pension schemes will not always recognise an English pension sharing order and so it is particularly important to take advice in respect of foreign pensions on divorce.

Spousal maintenance (sometimes called spousal periodical payments, or in some other countries called 'alimony') means continuing payments from one former spouse to the other, most often on a monthly basis.  

When it comes to future income, the English court's approach is not to divide it (which is its approach to assets in existence at the time of the divorce).  However, if one spouse has been wholly or partly dependent on the other to meet their income needs during the marriage, the court may decide some support should continue beyond the end of the marriage as spousal maintenance. Any order will usually be made on the basis of need.  Needs are influenced by (though not determined by) the standard of living during the marriage and the financial resources available.  If the standard of living during the marriage was high, needs will be assessed more generously and it is possible to include in the assessment all manner of things that a spouse has become used to (for example, running costs of additional properties, staff, holidays and leisure, designer clothes etc.).

The court will consider many further factors, including the ages of the spouses, the roles that each spouse played in the marriage, whether there are children, each spouse's qualifications and work history, any time that either of them might have spent outside of the workplace, and the availability of jobs.  The payee (i.e. the spouse who is to receive the payments) will be expected to use their own resources to support themselves to the extent that they can.  The court might say that the payee should increase their earnings or earning capacity or use some of their capital to meet their income needs.

As well as the amount of the payments, the court can also decide how long the payments should continue for.  The payee's remarriage or the death of either party also brings the order to an end automatically.

Spousal maintenance can be capitalised (i.e. it may be fair for the payer to pay a lump sum instead of ongoing payments).

Unless capitalised, spousal maintenance orders are variable (upwards or downwards) if either spouse makes a further application to the court on the basis of a change of circumstances.

As the law currently stands, neither pre (nor post) nuptial agreements are legally binding in England. However, a pre (or post) nuptial agreement can be highly influential and capable of being upheld by the court in its entirety if both members of the couple signed it with a full understanding of what they were signing.

This usually requires that each member of the couple has received independent legal advice, that each member of the couple has received financial disclosure from the other, and that neither member of the couple felt under pressure to sign the agreement (including due to the wedding being imminent.  As a guideline, pre-nuptial agreements should be entered into at least 28 days before a wedding).

The terms of the agreement must also be fair. The English court has a wide discretion to determine what is a fair financial outcome based on the circumstances of the individual case and the existence of the pre-nuptial agreement itself (if done properly) will be highly relevant.  But, as a minimum, any agreement needs to meet the financial needs of both spouses. (See how are assets split as part of divorce for more on 'needs').

The legal term 'custody' does not exist in England. When parents separate, it is presumed that they are able to agree the arrangements for their children between themselves. This includes whether the children should live with one parent or both parents (at different times), and what time they should spend with the parent that they may not be living with. There is no need to have this agreement 'blessed' by the court or any other authorities. 

If, however, the parents are unable to reach their own agreement, then they can apply to the court (but see also Do I have to go to court to decide where our children will live after divorce or separation?) for a 'child arrangements order'. This is a court order setting out who the children should live with (whether primarily with one parent, or both), and/or spend time with.

It is presumed (unless the contrary is shown) that it is best for the child for both parents to continue to be involved in their life. Beyond this, there is no 'typical set' way to handle divorce and child arrangements.  
It is for the parents to ideally agree what arrangement would work best for their children, and for them (see Do I have to go to court to decide where my children will live after divorce or separation).  

If it needs to be decided by the court or an arbitrator, the decision will be made depending on what the judge or arbitrator considers is in the best interests of the child (see How does a court decide living arrangements for children after divorce or separation?).

The focus will very much be on the particular child, and what routine is both best and manageable for them. There will be a great deal of focus on practical considerations, i.e. what is a child's routine throughout the week and how well can that mesh, practically, with each parent's commitments? It may be, for example, that one or both parents are in the (not unusual) position of balancing family life and evening work commitments and that they can be home on certain evenings and not others, or that one or both parents sometimes travel for work. 

The court will work 'bottom up' from the various family members' schedules and will resist attempts to work 'top down' from general labels which a parent might be tempted to apply to the day-to-day care arrangements such as 'primary carer' or from a parent's desire to parent a child for a given percentage of the time. There are therefore as many possible sets of arrangements for a child after their parents divorce as there are children and family routines. 

It is always possible to reach your own agreement about child maintenance (sometimes called child periodical payments, i.e. the day-to-day expenses relating to a child) after divorce as parents without the involvement of anyone else.

Where an agreement cannot be reached then child maintenance is, in most cases, dealt with by the Child Maintenance Service rather than by the court, where the children are spending more time with one parent than the other.  There is a formula to determine the amount payable, which will depend on the payer's income, the number of children the payer has with the payee, how the children divide their time between each parent, and whether the payer has other children.  There is a calculator available on the government's website (link here) to estimate the child maintenance payable in different circumstances.

However, if the payer's gross income is more than £156,000 per annum or if one of the parents lives abroad then general child maintenance will instead be dealt with by the courts. If there is any disagreement about who is to meet other income needs beyond general child maintenance (for example, school fees), then this will also be dealt with by the court.

When it comes to capital claims for children in the context of divorce (for example, a claim for housing or for other lump sums for a child) , these are usually wrapped up into the assessment of how assets should be divided on divorce (see how are assets split as part of divorce?), i.e. there will not usually be any separate additional claims specifically for children following divorce. 

In most circumstances, parents will have the same rights and responsibilities towards their child regardless of their marital status (and vice versa – children's rights do not depend on the marital status of their parents).

To take parental responsibility first, this essentially means the right to make important decisions about a child, for example about where they should live, where they should go to school, and what medical treatment they should or should not receive (see 'What does 'parental responsibility' mean?' for more detail).

Where both parents have parental responsibility (as is usually the case) it is generally accepted that day-to-day decisions, such as what the child should eat, what clothes to wear, what medicine to take when feeling unwell, school homework, seeing friends and attending parties, etc, as well as decisions on emergency medical treatment, are taken by the parent in whose care the child is at the relevant time, without having to consult with or obtain the consent of the other parent. 

However, any important decisions on a child’s welfare should be made jointly, and the family court has the power to intervene where there is a dispute on these decisions (such as choice of school or time spent with each parent) which the parents have not been able to resolve between them whether directly, with the assistance of solicitors or, for example, in mediation. 

A child's birth mother will automatically have parental responsibility on the birth of her child. A child's father or non-biological parent will automatically have parental responsibility if he / she was married to the mother at the time of the child's birth. 

A non-birth parent who was not married at the time of the birth will not automatically have parental responsibility but can acquire it in a number of ways - including by being registered as the child's parent on the birth certificate; by marrying the birth mother; by entering into a parental responsibility agreement with the birth mother and filing it at court; by obtaining a court order giving him/her parental responsibility; or by obtaining a court order that the child shall live with him/her or an adoption order. A father or non-biological parent who has parental responsibility then has the same rights to make important decisions about the child, regardless of how they came to have parental responsibility.

We have not here covered the acquisition of parental responsibility by step-parents, same sex parents, surrogacy or adoption, but we can advise on all of these matters.

In terms of the financial obligations that a parent has toward a child (which are technically tied to the fact of being a parent rather than having parental responsibility), these are the same regardless of a parent's marital status ). See 'Does one parent have to pay child maintenance to the other following separation?' and all of our other FAQs about children issues following divorce or separation here.

The court has no remedial powers to alter the legal ownership of a property. However, where ownership is of the property is disputed, what the court can do is to investigate the position and declare how it is owned and, if by more than one person, determine the share that each holds. 

In some cases, although a house may be legally registered in one person's name, this is not necessarily an accurate reflection of who actually owns the house. This is because one cohabitant might have a "beneficial" or "equitable" interest in a house, which is not recorded on the legal title.

Where ownership is disputed, the court's starting presumption will be that the legal title documents accurately reflect the underlying beneficial ownership unless there is evidence to the contrary. In this situation, the person without legal title might be able to demonstrate, by reference to an express agreement (whether written or verbal) or evidence of a common intention between them (for example in consequence of a financial contribution to the acquisition of the property or repayment of mortgage), that they have a beneficial interest. Non-financial contributions such as caring for the home or paying towards utilities and other house-keeping costs, are not sufficient to establish an ownership stake.

There are various concepts of trust principle on which a claimant might seek to rely, but perhaps the most common type in this context is the 'common intention constructive trust', in which he/she would need to prove:
•    that both cohabitants intended that the beneficial interest in the property was to be shared; and
•    that the non-legal title holder had relied on those intentions to their detriment.

Each case turns on its own facts. 

Where the court has determined that both parties do have a beneficial interest in a property, it can then determine the ownership shares, either by reference to an agreement if there is one, or evidence of a common intention or by imputing what it considers the parties to have intended by reference to the whole course of dealing between them.

Similarly, a house might be registered in joint names but one or the other might feel that this does not accurately reflect who actually owns the property in law, i.e. one of them might think that they have rights to a greater percentage than that specified on the legal title. In these cases, the court's starting point will again be to assume that the legal title accurately reflects the position (usually 50:50 where there is no accompanying declaration of a different proportionate split), but it is possible to challenge that presumption using the same trust principles referred to above. 

Leaving aside claims for children, and laws that enable claims to be made on bereavement, there is no statute which enables cohabiting couples to make a claim on the assets or income of their partner if they break up.

The court has no power to override the strict legal ownership of property. Cohabitants, instead, have to fall back on a 'patchwork' of esoteric property and trust laws which were not designed with them specifically in mind. For example, depending on the circumstances, they may be able to bring a trust law claim to try to establish that they have a beneficial interest in an asset by virtue of an agreement or financial contribution to its acquisition (see 'What is the legal position if we cohabit in a house that only one of us owns?').

Unlike married couples, the court does not have the power to determine what it thinks is a 'fair' outcome in terms of property division when a cohabiting couple is splitting up. Where there is a dispute, the court only has the power to declare, on the basis of evidence, how assets are legally owned, and in what proportion.

For financial claims in respect of children, see 'Does a parent who cohabits with the other parent rather than being married to them have the same rights and responsibilities towards a child?'