Info & Advice

Is a 50: 50 split the fairest outcome in a divorce?

It can be – but not in every circumstance. Dividing a couple’s money, property and other assets is a dispiriting but very necessary process when a marriage breaks down. The division enables both spouses to move on from the heartache of divorce and build new futures for themselves elsewhere.

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Clean breaks vs continuing ties

Sometimes it is necessary for a divorced couple to maintain financial links, at least for a period of time. For example, one partner may need to pay maintenance to the other, and if they have children, the absent parent will be legally required to pay child support. If the couple has chosen to sell the former family home, that may also require time and effort.

But the ideal is always the severing of all financial links in a so-called ‘clean break’ settlement. Family solicitors, judges and mediators all actively encourage divorcing couples towards a clean break as soon as they can and financial settlements will typically be structured to reach that ideal as soon as they can.

But while it is often assumed that a straight 50:50 split of the couple’s assets is automatic, the family courts recognise that this is not always the fairest course of action. Why not?

True fairness

An equal division of the assets is the usual starting point in financial settlement negotiations, but when a couple divorce, they are not always on a level playing field. Typically, one party will have a higher-flying career and greater earning potential. Perhaps the other stepped back from the workplace to focus on looking after the children – or they simply worked in a lower paying field. In either case, they will be unable to earn as much – at least for the foreseeable future – as their ex, so the family courts may conclude they should receive a greater share of the assets in reflection of these diminished economic prospects, now they no longer share life with their former spouse. The family courts have long recognised that homemakers and hands-on parents make an enormous contribution to family life, but it is a contribution that does not come with a price tag.

What is a stellar contribution?

It is also possible to argue in the opposite direction and argue in court that you should receive a larger share because you made a greater, or ‘stellar’, contribution to the family’s wealth. This is a hard case to make – judges must be persuaded that your financial contributions were exceptional enough to justify a departure from the “sharing principle”. The latter is the well-established legal concept that divorcing spouses should be regarded as equal parties in a marriage, equally entitled to “the fruits of the matrimonial partnership”. It is based on two highly influential, precedent-setting cases: White v White, from 2000, and Miller v Miller, from 2006.

Some very successful businessmen have succeeded in making a stellar contribution case, but these are rare exceptions to the rule.

An expert family will be able to provide guidance on the most appropriate course of action in your particular circumstances.

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