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My husband (or wife) never worked throughout our long marriage. Can I get more than 50%?

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You can get more than 50%, but it is unlikely that this will happen for that reason alone. While the court will consider the contributions made by either side when making its determination, the fact that you were the sole breadwinner for the family does not automatically entitle you to more than 50% of the assets. In fact, the longer your marriage has been, the more likely it is that the court will adopt a 50/50 split.

What does the court take into account when considering how to divide assets?

The way in which the court will look to divide up the pot of matrimonial assets is governed by s.25 of the Matrimonial Causes Act 1973. These include:

  1. The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
  2. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
  3. The standard of living enjoyed by the family before the breakdown of the marriage;
  4. The age of each party to the marriage and the duration of the marriage.

The job of the court is to look at all these (and other) factors in the round in order to reach a fair settlement. Many breadwinners may view the court’s conclusion to be manifestly unfair when viewed solely through the lens of financial contributions, but the longer the marriage is, the more likely it is that the court will view all contributions as equal.

What is a “long marriage” in divorce?

There is no specific length of time that makes a marriage long in terms of the law, but as a general rule, your marriage may start to be considered to be “long” if it is over ten years.

Several other factors can influence this. For example, if you lived with your partner for five years before getting married, and you are now divorcing after five years of marriage then the court would look at the length of the relationship as a whole as opposed to counting anniversaries. This is important because the court is more likely to adopt the sharing principle if the couple have been together for a long time.

What is the sharing principle?

The sharing principle is that the starting point in any divorce is equality.

In the leading case of White v White, the court considered that “there is no place for discrimination between husband and wife and their respective roles.” Since this decision, the principle of a 50/50 split has become the guideline in long marriages with assets that are surplus to the parties’ needs.

This is not necessarily the case in shorter marriages however, and the law has developed in this area over the course of the last 20 years. The courts may depart from the sharing principle in shorter marriages particularly where the parties have kept their finances separate and there are dual incomes, but the starting point is equality.

Why does the length of a marriage matter?

The longer a couple has been together, the more likely it is that their finances will be intertwined, and the contributions that each have made over the years become far harder to work out in terms of financial value. As Lord Nicholls said in White v White:

“Today there is greater awareness of the value of non-financial contributions to the welfare of the family. There is greater awareness of the extent to which one spouse’s business success, achieved by much sustained hard work over many years, may have been made possible or enhanced by the family contribution of the other spouse.”

You may have built your career while your husband ran the home or looked after the children (or both). Their contribution is impossible to value in terms of pounds and pence, but this contribution meant that your children were cared for and allowed you the freedom to pursue your career.

The length of the marriage is also linked to several of the other factors that the court must take into account, such as financial needs, earning capacity and your standard of living.

How does the court look at financial needs?

It is important to remember that much of the development of the case-law on this topic has been concerned with families whose reasonable needs can be met by the income and assets that they hold, and in those cases where needs can be met, the court’s main concern is therefore to look at what to do with what is left over.

However, most couples who divorce are not in this position. Many of us might look at our family finances and struggle to see how the same amount of money and capital could support two households as opposed to just the one that it is currently supporting.

The court’s approach will be to look at each case individually and see how both parties’ needs can be met. The question of either party getting more than 50% will not begin to be a factor until needs such as housing, income and retirement have been examined and catered for.

When would I be able to get more than 50%?

While you may have contributed most of the family finances, the court will normally only look at awarding you much more than 50% under the sharing principle if your contribution was truly exceptional. This is the so called “genius argument” where one side shows that their contribution was so exceptional that it would be unfair to ignore it. While such arguments have occasionally been successful, the courts have become increasingly reluctant to make such a ruling.

For example, in the case of Work v Gray, the husband had contributed all the family’s £200 million fortune through his work, but the court did not consider this to be a case that justified an uneven split of the assets.

One other exception to the sharing principle may be if some of your assets are held in a business that is trading. The value of your business may represent a considerable proportion of the assets on paper, but its true value is in its ability to generate income. This was the case in V v V in which the court made the following observation:

“I consider that the proper approach in a case of this kind is for the court to treat such business assets as primarily a secure income of the parties, from which there has to be a substantive and unlimited order for periodical payments.”

In these cases, the court may not consider the capital value of the business to be part of the pot that needs to be divided and take the view that both you and your husband will be benefitting from this asset, as any maintenance that he is to be paid will come from income earned by the business. It is important to note that, while you would be keeping your business, the assumption is that you would also be paying maintenance to your husband.

Will I have to pay my husband maintenance?

The longer your husband was out of work, the less he will be able to earn in future. The court will not penalise him for not working unless there is a very good reason to do so, and as this arrangement was one that had suited the parties throughout the long marriage, the principle of non-discrimination outlined in White v White will apply.

It is also important to consider that the longer the marriage was, the closer you will both be to retirement age, meaning that there is less time available for him to build up capital towards retirement. The court may consider that a pension sharing order is appropriate in these circumstances.

Ultimately your husband will need an income, and the court must look at each party’s needs as part of the process under s.25 Matrimonial Causes Act. While the court would expect him to look for work, it is inevitable that his income capacity will be limited. Unless his income needs can be met through the available capital in the matrimonial pot then it is likely that a maintenance order will be made.

Can my husband get more than 50%?

The court is not going to penalise you for being the breadwinner. However, it does have to try to ensure that both parties’ needs are met.

If your husband has not been working then he will not be able to raise a mortgage, so the court may order that he retains the home. This will depend on whether enough capital is available for you to have a deposit on a new property. He may therefore end up with over 50% of the available capital, but this should be offset by a reduction in his reasonable income needs, as you will need to retain a higher income in order to sustain a mortgage.

How much will I have to pay?

No two cases are the same as each is dependent on its own circumstances. Your best course of action is to speak to a qualified Family lawyer who can look at your individual situation and advise you of the best course to take.

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