The Division of Property on Divorce

• Dividing up the family assets
• Clean breaks
• Consent Orders
• Payment of Maintenance on Divorce
• Application for Consent Order preparation service

The law and the facts

Disputes over the division of the family assets on divorce are often referred to as Ancillary Financial Proceedings. That is because money matters are ancillary to and dealt with separately from the actual divorce action which is only concerned with dissolving the marriage. Whenever possible a divorcing couple should do everything possible to agree financial matters between themselves. Asking the Court to order a division must always be a last resort. However when doing so they should have in mind the legal principles which would be applied if the Court were to be called upon to make an Order.

On divorce the Courts have a very wide discretion as to the Orders which can be made in Ancillary Relief Proceedings. It is usually quite irrelevant whose name matrimonial property is in and if it is a long marriage it will not matter how property was acquired.

The starting point in dividing up the matrimonial assets will usually be 50/50.
This will however be varied depending upon the individual circumstances, the needs of the parties and in particular the needs of the children.

The consequence of this is that there is no defined formula and therefore there can never be certainty about what a court will order. The court is however required to take certain matters into consideration in ancillary financial proceedings which are set out in S25 of the Matrimonial Causes Act.

This section requires that:

In ancillary relief proceedings there must always be full disclosure by both parties of their assets in order to enable a calculation of their value to be made.
Some assets will cause particular complexities, and sometimes expert opinion is required on their value. Life and endowment policies, Pensions, and Business interests and shares, are certainly amongst these.

Where there are children, proper provision for them, and in particular providing a suitable home, will be a prime objective, but not as with Children Act matters the over riding objective in ancillary relief proceedings.

Marriage brings with it mutual obligations to maintain which can continue after the marriage is dissolved. This can create unfairness and will often be a barrier to the parties re-building their lives. The Court will therefore always consider making a clean break settlement order whenever this is possible. A clean break can never apply however to children and the obligation to maintain (and the parental responsibility) for children is unaffected by the parent's divorce.



‘Clean break’ models
There are two main ‘clean break’ models, the latter being most appropriate when there are children to be housed

1. For the matrimonial home and any other major family asset to be sold and the net proceeds divided between spouses, not necessarily on a 50/50 basis. An alternative to a sale is for one party to buy out the other all though this could not be ordered by the Court.

2. For the property to be transferred to one spouse (usually with the other being released from the mortgage) on the following basis:-

* Outright i.e. with no payment to the departing spouse. This apparent unfairness can be offset by relieving the party losing his house share from any ongoing maintenance obligation, or:-
by way of a cash payment from the spouse acquiring the others interest to the other spouse to put towards acquiring a new property.

* Retained interest ie. by the departing spouse keeping a percentage interest in the equity in the property to be received in the future upon the sale of the property.
The sale could be triggered by an event such as the youngest child attaining the age of 17 or finishing full time education, or the resident spouse remarrying or cohabiting.

In deciding the division of assets in ancillary proceedings, the conduct of the parties has little place, unless it is gross and extreme.



Consent Orders

When matters are agreed the Court should be asked to make a Consent Order.
Marriage creates financial ties and obligations and these can survive a divorce unless dismissed by an order of the court. It is therefore essential to obtain an order disposing with financial claims as part of the divorce case. Such an Order can be made by the court following pronouncement of decree nisi to take effect on decree absolute.

Very often the parties will have been able to agree financial matters between themselves and it will only be necessary for the court to sanction the agreement and make an Order in the agreed terms. This is known as a Matrimonial Consent Order.

To obtain a Matrimonial Consent Order it is necessary to prepare an Application in the prescribed form and submit this to the Court with a draft of the Order required.

We also have available an Application for a Matrimonial Consent Order Pack download which contains all the information and documents needed to make the application yourself for those who wish to go it alone.

The Pack is available for immediate download and costs £14.99.



Application for Consent Order preparation service

Our experienced family lawyers can prepare the Application on your behalf for a fixed fee of £150. The price includes advice on the Order being sought, and any problems that can be foreseen.

This is how it works:


• Complete our online questionnaire to provide the basic information our lawyers will need to prepare a first draft of the Consent Order.
• Make payment using either our secure server or PayPal.
• Our lawyers will prepare the draft Consent Order and contact you either by telephone or email for any further information needed and to discuss your application.
• When finalised the application will be sent to you either by post or email to approve and sign.
• The draft order can then be lodged at court together with the required statement of information.
• Your lawyer will remain available to provide any further help required in obtaining the Consent Order.

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