Jan 24

Getting a fair share on divorce

Written by Joanna Lofthouse
Chartered Legal Executive

DDI: 01423 724635
M: 07892 792457
E: jo.lofthouse@raworths.co.uk

On 1 November 2023, the Nuffield Foundation released its final report on ‘Fair Shares? Sorting out money and property on divorce’. This major research project, involving a survey of 2,415 individuals who had divorced in the past 5 years, investigated:

• What financial arrangements were made on divorce;
• How couples reached agreements; and
• The short term effects of the agreements.

The project highlighted that whilst over 100,000 couples divorce each year, only a third of those couples will formalise their financial arrangements by way of a court order (imposed or by consent) which leaves a staggering c. 67,000 who don’t.

Why is this?  What is preventing couples from getting a court order and/or accessing advice?

As the report highlighted, more information and awareness is needed about how the current divorce law works in practice for everyone (not just for the uber wealthy with whom the popular press can be obsessed) so that policy can be adapted accordingly.  This is also particularly important given the Law Commission has been tasked with reviewing the 50-year old legislation that governs how a couple’s financial relationship is resolved on divorce.

Key findings of the report were:

• Only 2 in 5 divorcees used a lawyer, whether for advice or support.
• 12% of divorcees took no advice whatsoever (even free advice or government signposting).
• Most couples had only modest assets and income to divide; the median net family wealth, including property and pensions, was £135,000.
• 17% of couples had no assets to divide.
• 37% of those surveyed were not aware of the value of their own, or their partner’s, pension pot and there was a lack of awareness about pensions generally, with only 11% of divorcees having a pension sharing arrangement.
• Women accumulate less pension provision during marriage, are more likely to work part time (earning less than their spouse) and this impacts on their post-divorce standard of living and financial vulnerability, especially mothers with dependent children.
• Using a lawyer suggested better outcomes than for those who did not, including increasing the likelihood of the pensions being addressed and one party receiving ongoing support.

Overall, to promote ‘fair shares’, the report concluded that as well as considering the governing law, attention needs to be given to the process by which divorcees reach agreements, especially those with limited means.  Accessible and authoritative information and legal advice is needed, as well as a range of affordable dispute resolution options and signposting during the divorce process itself to ensure financial arrangements are not ignored or overlooked.  Finally, rather than setting down stringent rules for sharing assets, with the researchers thus seemingly endorsing the current discretionary approach, policy makers should ensure couples consider all resources and prospects (including pensions) when reaching a settlement, to minimise unfairness.

It remains to be seen to what extent the Law Commission will take account of this report in its own deliberations.  In the meantime, the report highlights clearly the pitfalls associated with DIY Divorce and the positive effect of legal advice.

The Family Law team at Raworths based in Harrogate can be contacted on 01423 566 666 or email Head of Family Carmelita Ardren on carmelita.ardren@raworths.co.uk

Published on 11 January 2024