Article updated May 2023
For the second time this week I find myself writing a post inspired by a conversation on Twitter about the fair distribution of assets between spouses when they divorce.
Before I proceed I should explain that I shall purposely be trying to limit the amount of law in this post. The whole purpose of this post is to discuss what society might think the law relating to financial settlements on divorce should be, not upon what it actually is.
A central issue is the question of whether it is fair that assets accrued in a marriage should be divided equally, without reference to who was responsible for accruing them. To put it another way, is it fair that the person who did not earn or receive the assets should get a share in a divorce financial settlement?
Typically, in the majority of marriages one party is either the sole or highest earner. A traditional scenario that’s still common now, is that one party is the primary earner, while the other works part-time or remains at home running the household or caring for children. Once this arrangement is established it creates an imbalance between the earnings, or values of the assets acquired by each party, during the marriage.
How these unequal financial contributions should be approached during divorce has been the subject of debate for years. There was a time when the law favoured the husband, who historically was almost certainly the sole or primary ‘breadwinner’. Thankfully that time has long passed, and these days conventional wisdom holds that marriage is a joint venture. Accordingly, the contribution of the ‘homemaker’ is considered to equal the contribution of the ‘breadwinner’. Or, to look at it another way, it’s understood that the non-financial contribution of the ‘homemaker’ enables the ‘breadwinner’ to prioritise work.
Depending on your circumstances you may wonder if this is fair? Even though conventional wisdom sees marriage as a partnership of equals, there are still some who disagree with how divorce finances are divided. They feel the primary earner should get a larger and proportionate share of the financial settlement where possible.
It all boils down to the concept of ‘fairness’. The problem, of course, is that two perfectly reasonable people might have quite different ideas of what is fair. Some will agree it seems fair that homemaking equals breadwinning, at least in broad terms.
But then things are not always straightforward and respective contributions are not always equal. The concept that one role is more valuable than the other irrespective of effort or sacrifice is complex. We’re not comparing like-for-like.
The question is, has conventional wisdom gone too far? It’s unlikely that the law causes any ‘breadwinner’ to regret their efforts to earn money prior to the marriage breaking down. However, I’m sure many will feel aggrieved that they’re not rewarded for their essential financial contributions in the divorce financial settlement.
What are matrimonial assets?
Matrimonial assets include everything you or your spouse have, whether in joint or sole names, such as the family home (including any outstanding mortgage), pensions, savings, investments, shares, businesses, vehicles and jewellery.
What if our contributions to the matrimonial assets were unequal?
All contributions to the marriage, including childrearing, are considered in the financial settlement. When examining the split of all assets, the starting point is 50/50. However, when dealing with these matters, the Court has broad discretion and will consider all aspects of your case, with a primary focus on provision for children and housing needs.