If you are planning to separate from your spouse, you may be wondering how your money will be divided and what factors will impact your financial divorce settlement. Unfortunately, there is no black and white answer to this question as everyone’s circumstances are different, but one of the major influences can be the length of your marriage.
Long marriages present unique problems in divorce proceedings, including issues surrounding pensions and earning capacity if you are nearing retirement age. Here, we look at how the length of marriage is determined, what the Courts identify in a financial divorce settlement, and how this relates to property distribution and spousal support.
The duration of a marriage plays a critical part in the division of property as well as the level of spousal support. As it stands, there is no conclusive legal definition of what constitutes a long marriage. While a marriage lasting 20 years is likely to be considered a long marriage, a marriage of 10-15 years could also be classed as one depending on the relationship before the marriage occurred.
The length of time a couple spends cohabiting before getting married can be added to the overall duration of the marriage. This means that a relatively short marriage may be construed in the same way as a long one if there was a lengthy pre-marriage cohabitation period immediately preceding the marriage. If the transition from cohabitation to marriage is considered seamless, then the pre-marital cohabitation can be thought of as part of the marriage.
The criteria the Courts look at for a financial divorce settlement are contained within section 25 of the Matrimonial Causes Act 1973. As each circumstance is different, the Court is expected to consider a range of matters relating to the parties, including:
The starting point the Courts will typically use to calculate the division of capital in a divorce settlement is a fair split of assets. In a relatively short marriage, with no dependents and in circumstances where both parties have worked, the Courts will generally follow the principle of equally sharing the finances.
Case law has repeatedly shown that in longer relationships, the courts will give a higher award to the financially weaker spouse (if possible) to enable them to be financially secure for the rest of their lifetime. A longer relationship will have usually gathered more complicated asset ownership and so this can add to the complexity of how the financial divorce settlement will be determined. In such cases, the Courts will tend to go above and beyond the basic 50/50 division of assets and may award a larger portion to one spouse.
It’s important to note that any assets brought into the marriage are normally retained and returned to the party that originally owned them, meaning only the assets accumulated during the marriage – known as matrimonial assets – will be split on divorce.
The Courts’ overriding objective is to ensure fairness and equality in the division of assets, therefore, a 50/50 split may not be the most appropriate decision, particularly if one party has been financially supported throughout the marriage.
Usually the greatest asset in a marriage will be the matrimonial home, which is why establishing how property will be divided can be difficult. The Courts can transfer a jointly owned property to the ownership of one of the parties or, in circumstances where the home is already under the sole name of one of the parties, the Courts have the power to alter the ownership.
Whether you are thinking of changing ownership to the house, buying your partner out, or having a clean break and selling the property completely, trying to reach an amicable agreement with your spouse about the future of the matrimonial home is always recommended.
In some cases, the spouse to a marriage of 20 or 30 years may not have had any employment during the relationship and, instead, has stayed at home to look after the house and raise the children. On divorce, that party’s earning capacity and potential is likely to be low and so the financial settlement will be adjusted to take this into account. The contributions of each party are considered by the Courts and this will include the contributions made by the party who cares for the family and runs the home while the other has worked.
How long the parties have been married will also influence the level of spousal support set out in the financial divorce settlement. If there is financial disparity between the parties of a long marriage, the court is likely to order the wealthier spouse to make payments to the financially weaker party.
It is common that when one party has been financially supported by their partner over the course of their relationship, the settlement granted will aim to allow both parties to retain a similar lifestyle post-divorce. The length of marriage will usually increase the length of time that these payments need to be made (this can be for the remainder of their lifetime). In short marriages, spousal support is less likely to be awarded.
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