Who Gets What in a Divorce?

When couples divorce, one of the first and most pressing questions is often: “Who gets what?” While many people assume that assets are automatically divided equally, the reality is far more nuanced.

In England and Wales, the court’s approach to financial settlements is guided by fairness, with careful consideration given to factors such as housing needs, childcare arrangements, income disparity, pensions, business interests, and the welfare of any children involved.

In this guide, we explore how courts decide divorce financial settlements, what factors influence who gets what, and the importance of formalising any agreement through a legally binding financial remedy order.

Understanding how decisions are made

How do courts in England and Wales decide who gets what in a divorce?

The court will take into account the financial resources of both parties, including any assets and earning capacity, along with the needs of both parties, the welfare of any child and in some situations, contributions, when deciding who gets what.

What financial resources are taken into account when assessing “who gets what”?

All matrimonial assets are taken into account in deciding who gets what. This includes the family home, any other property, savings, investments, pensions, business interests, etc. The income and earning capacity of both parties is also taken into account.

Is there a starting point for splitting assets, and when does the court depart from it?

The starting point for splitting assets in a long marriage (10 or more years long) is 50/50. The court will depart from an equal split where one spouse’s capital or income needs are not met by a 50/50 split. This could be due to one spouse having a much lower income, being the primary carer for the children, or having a disability.

What factors influence whether assets are split equally or unequally?

Contributions may impact on the splitting of assets, but only in rare circumstances. The court will only usually split matrimonial assets unequally, if one spouse’s needs is not met by an equal split.

To what extent do contributions—financial and non-financial—affect the outcome?

Contributions could impact the division of the assets on divorce. Contributions may impact the outcome where the marriage was short, and the majority of the assets were accrued as a result of one person’s pre-marital contributions. Special contributions can also be considered, however this is very rare and is only where one spouse has made extraordinary financial contributions to the marriage.

Key priorities and children

How does the court prioritise the needs of children when dividing assets?

Under Section 25 of the Matrimonial Causes Act 1973, when the court is deciding how assets should be divided, their first consideration must be the welfare of any child of the family who is not yet 18.

How do childcare arrangements and future needs influence financial settlements?

If the child has one primary caregiver, then it can be the case that they stay in the family home or receive a larger share of the capital in order for them to purchase a property which is suitable for themselves and however many children there are. If one spouse does not have the children overnight, or not very often, then their housing need will be less, which may impact any splitting of capital.

Furthermore, if one spouse’s earning capacity is limited due to the level of childcare, then they may receive spousal maintenance to balance the disparity. Financial settlements can also include a specific amount of child maintenance payable.

Property and major assets

What happens to the family home, and what options are available for dealing with it?

Following the Standish judgment, the family home is treated as having a unique status and is always treated as a matrimonial asset, even if owned by one spouse solely. The options for dealing with the family home are for it to be sold and the proceeds split between the parties, for it to be transferred into one spouse’s name. The spouse maintaining the property could pay the other person a lump sum amounting to their interest in the property.

How are mortgages and joint liabilities factored into decisions about property?

When dealing with the value of a property, mortgages, joint liabilities, and costs of sale are taken into account. The equity in the property is calculated by taking the value of the property and deducting liabilities, estimated costs of sale and any penalties if the property was to be sold.

What happens to second homes, buy-to-let properties, or holiday homes in a divorce?

In a divorce, all interest in properties should be disclosed. These properties can also be sold or transferred (if held in joint names). These properties do not have the same status as the family home, and so may be treated as a non-matrimonial asset, depending on the origin of ownership.

Complex and long-term financial assets

How are complex assets such as businesses, pensions, savings, and investments treated in a divorce?

All of these assets are treated as capital assets. Pensions are treated separately, as the court will always try to obtain equality of income on retirement. Pensions can be shared to one of the parties via a ‘Pension Sharing Order’ or one spouse can receive a greater share in another asset to compensate for having a weaker pension pot, this is called a pension offset.

Can one spouse protect assets acquired before the marriage or received by inheritance?

Assets accrued before a marriage, inheritance or potential inheritance is generally treated as a non-matrimonial asset. If the couple’s needs can be met using only the assets built up during the marriage, inherited assets can be ringfenced. However, if the "needs" of one spouse cannot be met through the division of assets built up during the marriage, the court may need to consider inheritance as a factor. You should consider a Pre Nuptial Agreement if you have assets that you would seek to protect on divorce.

Debts, risk and disclosure

How are personal and joint debts divided when a couple divorces?

Joint debts accrued during the marriage are generally treated as matrimonial debts, and are usually split or paid off from the sale of any assets. If one spouse has recklessly incurred large debts, for example via gambling, then the debts can be added back to the individual’s share of the assets, as if they still had the funds.

What happens if one spouse is found to have hidden or transferred assets?

If one spouse is found to have hidden or transferred assets, then they may receive a lesser share of the assets. It may also be possible to ask the court for a freezing order which will prevent any more of that asset being moved. When a spouse completes their disclosure, they will be signing a statement of truth, and if they have found to have lied within their disclosure, especially if the case is in financial remedy proceedings, then they could be found in contempt of court and even imprisoned. Further, any Order made could be varied to take into consideration the true financial position.

What steps can be taken to ensure full and accurate financial disclosure?

To ensure full and accurate disclosure, both parties will complete a Form E which details all of their assets and income, along with evidence such as bank statements and payslips. If either spouse is concerned about the other’s disclosure and believes things may be missing, then they should raise a Questionnaire which will ask specific questions about that disclosure, and can request additional evidence.

Formalising the outcome

What is a financial remedy order, and why is it essential to formalising a divorce settlement?

A financial remedy order is a necessity as it is the only way to sever the financial ties between the parties. To do this, an order for a clean break needs to be included within the financial remedy order which means that both parties have no further claim against each other’s finances. A financial remedy order is also enforceable if one spouse decides to breach it.

What types of financial remedy orders are available, and how do they determine who gets what?

The court can make an order for sale which is an order that a property is sold. The order will also determine how the proceeds of sale are split.

The court can also make an order transferring property from one spouse to another, or from joint names into one spouse’s sole name.

The court can order a pension sharing order which will state that a certain percentage of one spouse’s pension shall be transferred to the other.

A spousal maintenance order can be made which declares that one spouse will pay the other a set amount of maintenance.

What is the difference between a consent order and a contested financial remedy order?

A consent order is an order reached voluntarily of which the terms were agreed by both parties. A financial remedy order is an order that is made by a judge following a Final Hearing in financial remedy proceedings.

What are the risks of reaching an informal agreement without a court-approved order?

If a court-approved order is not obtained, financial ties between you and your spouse will not be severed and they may be able to make a claim against your assets in the future. The court also has no power to enforce an informal agreement, unlike with a court-approved order.

Agreements and resolving disputes

How do prenuptial agreements, mediation, and court proceedings influence who gets what?

Mediation and court proceedings do not influence who gets what, they are just two separate ways of dealing with the financial issues on divorce.

Prenuptial agreements can determine how assets are to be split on divorce. However, they are not binding and so the court does not have to uphold the terms of one in financial remedy proceedings. However, following the judgment in Radmacher v Granatino, courts should give weight to prenuptial agreements as long as they are freely entered into and meet the needs of both parties.

Need to speak to a divorce solicitor?

Seeking early legal advice can provide clarity on your position, help protect important assets, and ensure any agreement reached is both practical and legally enforceable. From negotiating financial settlements to advising on pensions, property, and complex wealth structures, specialist legal guidance can make a significant difference to the outcome achieved.

At Aaron & Partners, our divorce lawyers provide clear, strategic advice tailored to your individual circumstances, helping you move forward with confidence during what can often be a challenging and emotionally complex time.