In the end, most people agree how to share out their money and property when they split up. Very few couples end up going to a final hearing at the family court and having a judge decide the outcome for them.

There are 5 major things to sort out:

• if you have children, who they are going to live with and where they are going to live.
• how you will each support any children you have.
• where you will each live.
• what you will each live on.
• how you will share out any savings or pensions and divide responsibility for any debts.

There are no set answers. You have to decide between you (or ask a judge to decide) what will be best for your children and for each of you.
You may find at times that you feel stressed, anxious, disappointed or angry about things not going the way you imagined for your family. If you are going through a break up or you have been through one recently, you are probably going through a very stressful time. It can feel very hard to make any decisions. Be kind to yourself. It will take time to get things sorted out and back on track but you will get there.

Sometimes where you, your ex and your children, if you have children, will live is obvious to you both. But often this is a really hard decision. The most important thing is for you both to be clear that, if you have children, you are making the decision based on what is right for them at this point in their lives, rather than accidentally putting your needs ahead of theirs. See Sorting out chld arrangements for more help.

Questions to ask yourself

Here are some important questions to think about as preparation for sorting out these issues:

• what income and property do you have?
• what debts do you have?
• if you have any children, how old are they? If the children are independent adults, their financial needs are no longer relevant to the judge’s decision.
• how long have you been married?
• did you live together before marriage, and if so for how long?
• how old are each of you?
• are you both in paid work?
• if not, could you find paid work?
• how much do you or could you both earn?
• do either of you or any of your children have a significant health problem which will affect the amount of income or type of property you or they will need?
• what is the cost of renting or buying a home in your area?

Going to court can often cause relationships to be permanently damaged, and leaves the adults involved hurt, stressed, and poorer. You could spend the money you would spend on going to court making your children’s lives and your own more comfortable.

Children can often be upset too, even if you are careful not to involve them directly. So it is usually best to come to an agreement between yourselves, or using a family mediation service, or a solicitor to negotiate on your behalf. However you do it, you will both need to compromise.

Option 1 - agreeing it yourselves

If you have recently split up or if you have a lot of history together, you will need to find ways to discuss things without all your emotions getting in the way.

Agree in advance with your ex how you will try to come to an agreement. For example, will you find a date to meet on neutral territory, do it over email, or will you use a family mediation service? Nobody likes to feel ambushed and you have a much better chance of agreeing something if you start your discussions feeling that you have both chosen the approach you hope will work for you and you want it to succeed.

If you have a lot to discuss, try to agree what is urgent and deal with that first. You may have different priorities, but dealing first with what is most worrying for each of you can make the other things go much more smoothly.

Before you discuss it, think about what you want to agree. What is best for any children you may have? Then work out what you would like and where you can be flexible. If you know what your ex might feel about your suggestion, think if there’s anything you can do to make it more appealing for them.

Try to stick to the point as much as you can. If you are meeting in person, having the main points written down on a piece of paper can be helpful and give you something to focus on if you feel yourself starting to get upset or angry, or if your ex strays from the point. If you try to do it over email, do bear in mind that it is even easier to take offence when you can’t see expressions or hear tone of voice, so keeping yourself calm and sticking to the point is even more important.

Listen to any suggestions your ex makes. Even if you can immediately think of 10 reasons why it's a bad idea, resist the impulse to say so. Instead let them see you are giving it some serious thought.

If or when you make an agreement with your ex about how you are going to sort out your finances when you get divorced, you must turn that agreement into a ‘consent order’ if you want to be able to enforce it.

Consent orders

A consent order turns an informal agreement into a court order. This means that if necessary the court can make sure that what you have agreed actually happens. Without a consent order, (or a final order made by the court at a final hearing), it is always possible for either you or your ex to apply to the court for something different to what you originally agreed, even long after you are divorced. This is the case unless one of you remarries.

An informal agreement is just that – informal, not necessarily final and not legally binding on either of you. To get a formal agreement – one that is officially recognised by the court – you must get a consent order.

If you have agreed that you want to share a pension, then you will always have to get a consent order that includes an order for the pension to be shared because pensions cannot be shared by private agreement. The pension fund manager has to receive an order from the court telling them to share the fund.

If you want to reach a fair agreement which sorts out your finances between yourselves then you need to understand what the law says.
The law does not set out hard rules or use a mathematical formula to sort out your finances when you get divorced. This is because people’s financial situations are so different that it would be very difficult to make rules covering every situation. Instead, a judge has to decide each case after considering its particular circumstances.

But the law does give judges (and you too) some basic principles that apply to all cases. If you and your ex try and agree how to share out what you have between you, the court expects you to take these principles into account. And they also apply if you ask a family mediator to help you reach an agreement without going to court.

We explain these basic principles below.

The welfare of any child of the family under 18 years old

This is a very important factor and will be the first thing a court considers. In many cases, it can mean that most, maybe all, of your joint resources should go towards providing a home for your children. Typically the children will live with the person mostly responsible for their day to day care. This is why it is common to come across situations where the person mainly looking after the children stays with them in the family home.

The value of any benefit which you will lose the chance of acquiring

This is about things that you are no longer going to benefit from as a result of splitting up, for example, the possibility of getting a lump sum or income from your ex’s pension scheme if they die before you.

Whether it is fair and reasonable to order a clean break

A judge also has to think about whether and when it is fair to end your financial responsibilities for each other. The ideal is that you share out your money and property in a way that means you can become financially independent of each other, either straightaway or over time (possibly, several years). The law calls this a ‘clean break’. But this is not always possible. It will depend on the circumstances of your case. It is more likely to happen if yours has been a short marriage with no children or you both have well paid jobs. It may not be possible where there are children or the marriage has been long, unless there are enough assets to meet the needs of both of you and any children and you both have enough income to support yourselves.

A judge has the power to share out all your property, money, pension and savings (the law calls these things ‘assets’) in a way that is fair to your children, and you and your ex. You need to do the same.
Your assets include everything that belongs to either of you (not just things in the names of both of you) and things owned or paid for by just one of you (for example, pension savings and future/current pension benefits, personal savings accounts and investments). When you work out how to share what you own, it is essential that you look at the hard figures in detail. It’s only by doing that, that you and your ex will get a real sense of what will and won’t work in your particular situation.

A fair outcome should ideally meet your family’s various needs, in both the short and long term. But this is only possible if there is enough to go round. Often there is not.

Decisions which you both made during the marriage are likely to influence how things are shared out when you get divorced. For example, if you both decided at the beginning of your marriage that one of you would give up work (or take a part-time job) to stay at home in order to look after your children, it may be much more difficult for that person to pick up the threads of a career or find other employment after many years at home. Sometimes he or she may need to retrain or acquire new skills. The aim in these circumstances is to enable that person to become independent as far as possible. Sometimes, this won’t be possible, especially if one of you is older.

What if my wife has the higher income or owns more of the assets?

The law that deals with the financial consequences of divorce is ‘gender neutral’. It does not matter who has been the higher earner or who has done most of the childcare. The same basic principles apply. So, for example, a higher earning wife who has gone out to work full-time could end up maintaining a lower income husband who is the primary carer for the children.

People very often have different views about what is fair. But what counts here is what the law views as fair. We include lots of examples in this guide - typical situations showing how a judge might decide to share out a couple’s income and assets when they get divorced. We hope this shows you what the law views as fair and helps you think about how to deal with your own situation.

If you are being pressurised or bullied into an agreement that does not seem fair to you, or you think your ex is not telling the truth about what money or property they have, get some legal advice. See the section called More help and advice.

Can’t I just leave my marriage with all the property that is in my name?

No. In some cases, it will be appropriate for each of you to walk away with what you own, for example, after a short marriage where both of you are working and financially independent. But in a lot of cases, it will be necessary to share assets regardless of who owns what.

Isn’t it always just equal sharing of everything?

No. In some cases, this is the fair thing to do. For example if you have no children and both of you earn similar amounts, or where there is a lot of money to go round, then a half share will be enough to cover each of your needs.

However, in other cases you may not have enough assets to meet your and your ex’s needs. For example, if one of you looks after the children and cannot work full-time, that person may have greater needs than the other and be less able to meet them alone. In these situations, a judge is unlikely just to divide everything 50/50. The judge will focus on meeting each of your needs, giving priority to any children under the age of 18. As a result, one of you may get more than half of the assets to make sure that his or her needs and the needs of the children are met.

Sharing your assets

If your case goes to court, the first thing a judge does is to review your assets, debts and income to see how much there is to share out. This should be your first step too. You both need to be honest about what you own and what income you have.
In a lot of cases, the family home will be the most important asset. This will almost always be the case regardless of who actually owns the property and/or whether one of you owned and was living in it before the marriage.

Pensions are easy to overlook, but they are very important and are sometimes the most valuable asset in a case. For more information about dealing with pensions when you get divorced, see Pensions.

In cases that go to court, there is a special form (Form E) that you each complete to provide the other with full information about all your income and assets (the law calls this ‘disclosure’). This includes disclosing information about assets you may think of as being just ‘yours’. You may want to add a comment explaining where a particular asset came from. This form is also useful for couples who have no intention of going to court. It will help you make sure that you provide each other with all the necessary information.

You can find information about how to fill in Form E in another of our guides How to apply for a financial order without a lawyer. There is also a short film about this on Advicenow's YouTube channel: How to fill in your financial statement (Form E) - England and Wales.

Can I protect the assets I brought with me into the marriage from claims by my ex?

Maybe, maybe not. It depends on the circumstances of your case. If you and your ex don’t have enough assets to pay for what you each need, then you will need to share any assets you owned before the marriage in order to meet those needs.

Can I protect the assets I was given or inherited during the marriage from claims by my ex?

Again, that depends on the circumstances of your case. If you and your ex don’t have enough assets to pay for what you each need, then you will need to share anything you were given or inherited during the marriage in order to meet those needs.

What a judge can do

A judge has wide powers to move assets around between you. You should think about the orders a judge can make when trying to reach an agreement with your ex, because you can agree similar things. How you share out what you have will partly be a matter of what you both prefer to do in your case in order to meet each other’s needs. You may not need to use all the different types of order that are available in your case.

A judge can:

• transfer a particular piece of property (including in some circumstances a rented home) from one or both of you to the other,sell a property and
• split the proceeds from that sale between you,
• allow one of you to live in the family home for a specified period or until a particular event occurs (for example, the children grow up and become independent), after which the house is sold and the proceeds shared out between you,
• require one of you to pay a lump sum of cash to the other,
• share a pension fund or pension payments between you,
• require one of you to make regular payments to the other (usually called ‘maintenance’),
• require one of you to pay school fees or other special expenses for the children.

You can find more information about the full range of orders that the court can make in the section What kinds of financial orders can a court make? in our guide called How to apply for a financial order without a lawyer.

In this section we look at the different ways courts typically share out assets to meet a family’s needs when people get divorced. ‘Assets’ are everything you have other than income - things worth money, like houses and other property, furniture, cars, investments, savings, pensions, and jewellery. We deal with pensions separately, see Pensions.

Housing

One of the most important needs for any of us is housing. So the first thing a judge will do is to make sure you both have somewhere to live – if you have enough money to make that possible.
And when you are deciding how to do this, you need to think about the same things a judge would think about including the following:

• your children’s welfare is the most important thing to consider. In many cases this can mean that most, maybe all, of your assets will go towards providing a home for your children. The priority is to make sure that the parent the children live with most of the time gets somewhere to live – somewhere that is suitable for the children. But it is still important to think about the other parent’s need for housing, as well as their need to have somewhere for the children to come and stay.
• if the family home is owned by one or both of you rather than rented (including where you are still paying for it with a mortgage), then it is likely to be the main asset available for you to share out to meet your housing needs. If this isn’t enough to pay for the housing you need, you might also need to use any other high-value items you own either separately or jointly such as investments, cars, or buy-to-let property.
• you may only be able to afford the mortgage you need to buy somewhere reasonable to live if you get maintenance from your ex. If you are in this situation, it may be better if you get more of the assets so that you can borrow at a lower level and repay the mortgage yourself, without having to rely on maintenance.
• who currently owns the family home is generally of no significance when you get divorced: a judge has the power to transfer it between you in order to meet your needs.
  A family home which is rented may also be an asset. If you have a local authority or housing association landlord then a judge has the power to transfer the tenancy to one of you. If you have a private landlord the judge doesn’t have the same power but will still need to know how you intend to deal with the tenancy. For information about the options available to you, read on to section B.
• an important first step is to get a full picture of the assets available. This will normally involve you getting an up to date valuation of any property, an up to date figure for the sum still owing on any mortgage (including any penalties for paying the mortgage off early, known as ‘early redemption penalties’) and an understanding of the size and repayment schedule for any other debts or liabilities.
• should you keep the family home for one of you to live in? Keeping the family home has the benefit of reducing change at what is likely to be an unsettling time, particularly if you have children. This is especially true where a move may require a change of school and disrupt local friendships and activities. Keeping the family home may also have financial benefits. For example, it avoids the costs involved in selling, moving and buying a new home, and may enable one of you to keep the existing mortgage in a situation where getting a new mortgage may be difficult.
• if one of you wants to keep the existing home and mortgage, you need to find out whether the mortgage company will agree to this. You also need to check whether they will release the other one from any further responsibility for the mortgage.
• when you do your sums, it may become clear that neither of you can afford to keep the family home as well as making sure that the other has enough money to buy or rent a new home. In these circumstances, you may have to sell it to release money to help you buy or rent alternative, more modest homes. One, or possibly both of you, may have to move into rented property, at least to start with.
• when you work out what housing you can afford, you need to think about the income you will need to pay the rent or a mortgage. You can find out how much housing benefit you may be entitled to (to help pay the rent) at Housing benefit (England, Scotland and Wales). Universal Credit is being phased in across the UK so, depending where you live, when you make a claim for housing benefit you may be required to claim Universal Credit instead. You can find information about Universal Credit at What is universal credit (UC)?
• you can use the MoneyHelper mortgage calculator to estimate how much each of you may be able to borrow on a new mortgage in your own name to buy a home. You may hear this called ‘borrowing capacity’. You will still need to visit a mortgage lender like a bank or building society to get a specific quote.
• the standard of living you enjoyed during the marriage is a guide to the standard of housing you may be able to expect in the future.  But in practice, what is just about enough to keep one family going is often not enough to provide adequately for two households. So it may be impossible for that standard to continue. If your standard of housing has to reduce, then ideally that should not affect one of you more than the other. Again in practice, if you have children, then their needs may mean that the parent they don’t live with most of the time has to make do with a lower standard of accommodation.
• if either of you or your children has a physical or mental disability or ill-health, then this may impact on your housing need. For example, if the family home has already been adapted to meet the needs of a disabled family member, then, if it’s financially possible, it may make sense for whichever one of you is disabled or cares for the disabled family member to keep the home.

Examples of how courts deal with meeting housing needs

Here are some typical situations that may help you work out what is best to do in your circumstances.

A. If you own the family home (with or without a mortgage)

1.  If you own the family home and neither of you can afford to keep it.

   The size of the mortgage (and possibly other debts) and how much income you have may mean that it is not possible for either of you to keep the family home after you divorce. In those circumstances you will have to sell the home. You can then share out the proceeds from the sale (after you pay off the mortgage and other sale costs such as estate agent’s fees) in a way that meets both your needs – as far as is possible. The law gives priority to the parent who the children live with for most of the time, or to the parent with the lower income, who may need money for a deposit for a tenancy and/or furnishings for themselves and the children.

   In situations where there is not enough or any money to buy a new home, the only solution is for both of you to apply for social housing, rent accommodation privately, or return to live in shared accommodation with family members or friends.

2.  If you own the family home and one of you keeps it and the other leaves and has to find new accommodation.

   In this situation, often there is not enough money to buy a second property for the person leaving the family home to live in.
   If you have children under 18 then the priority is to make sure that the parent with whom the children live most of the time gets somewhere to live – somewhere that is suitable for the children. This may mean that there is little or no money immediately available for the other parent to use to buy another home. As a result, they may have to rent somewhere or live with family members or friends.

   If there are no children under 18 living at home (or where there are no children), it is harder to justify one of you keeping the family home to the exclusion of the other, without making sure they get enough money from your other assets to buy another home of a similar standard. If you haven’t got enough to do this, then you may have to sell the family home and share out the proceeds. If you have children over 18 who are still in full-time education and living at home, you should think about whether it is possible to delay any sale until they have finished their studies.

   There is a particular type of order (the law calls it a ‘Mesher’ order) which involves the parent leaving the family home keeping some interest in it which they get later.

Mesher orders

A Mesher order gives a percentage share of the value of the family home to the parent who doesn’t get to keep it. This is paid to them at a specified time in the future, for example when their youngest child finishes education (either school or college/university). You can add other ‘trigger events’ so that if, for example, the parent who remains living in the family home remarries or cohabits permanently with a new partner (normally defined as living together for over 6 months) or dies, then the parent who has left the family home will get paid their share.
Think about whether this kind of arrangement really suits your situation. If you are the person who stays in the family home, you will need to be able to raise enough money to buy out your ex’s percentage share when the repayment is due or sell the home to do this. If you have to sell, where will you live then?

Deciding what percentage share you should each get depends on several factors, including the age of the children, what you will each contribute to the running and upkeep of the home, and the anticipated earning and borrowing capacity of the one who will need to find somewhere else to live when the property is sold.

If you are the person who no longer lives in the family home but you still make a significant contribution by paying the mortgage and/or maintaining your ex, then it may be fair for you to get a 50% share of the property. If you are not making this level of contribution, and if the parent still in the family home continues to be the children’s main carer for several years then you may get between 30% and 40%.

The percentage share is specified at the time of the agreement so that you both have certainty. What the person no longer living in the family home gets will be a percentage of the value at the point of sale rather than at the time you reached an agreement.

Mesher orders normally result in ownership of the family home being transferred to the person who is going to continue living in it. Usually the mortgage will need to be transferred too. The other person has a legal charge (a bit like a mortgage) to protect their percentage interest. However the mortgage company has to agree to this and it has to agree to the mortgage being transferred to the person who stays in the home. If that person is on a low income the mortgage company may well not agree to this, because they will not want to reduce the number of people liable to pay the mortgage.

Agree and record what responsibility (if any) you each have to pay the mortgage, utility bills, buildings insurance, and continuing repair and decoration costs. This will help avoid confusion or disputes in the future.

Mesher orders need very careful drafting and we suggest you get a solicitor to do this. For information about how to find a solicitor see the section called More help and advice. Or, you can contact one of our panel members who are all specialist family law solicitors and members of Resolution. Because drafting a Mesher order is complicated, our panel members are not able to say exactly how long the work will take and so they can’t offer everyone  a fixed fee on this. But you can talk to them about how much it will cost and how long they think it will take.

3. If you own the family home and there is enough money for both of you to buy homes of a lower standard.

   Sometimes divorce can lead to the sale of the family home with the net proceeds of sale being enough to allow both of you to buy a new home. In most cases, these are likely to be more modest than the family home.

   If you have no children and you both have similar incomes and mortgage-borrowing ability, with similar housing needs, then a 50/50 division of the net proceeds of sale is probably fair. But if, for example, your earning capacity has been limited during the marriage (and/or following divorce) because of child-care responsibilities, then you may be able to borrow less money for a mortgage than your ex. A judge will often expect the person who can borrow more to take out a mortgage (or a larger mortgage) in order to buy a new home for themselves, while the other gets a larger share of the money from the sale of the house. This will allow them to buy something of a suitable standard either with no mortgage or a smaller mortgage.

   If you need to share out the money from the sale of the family home unequally, then you should think about whether the person getting the smaller share should receive a greater share of any other assets.

4. If you own the family home and there is enough money for both of you to live in homes of a similar standard.

   If there is enough money for both of you to have homes of a similar standard to the family home you lived in during the marriage, then that would normally be the fair thing to do. Where you both want to buy new homes, you can sell the family home and share the proceeds of sale or one of you can keep the family home (especially if there are children) and the other buy somewhere new.

   However, this will not always be fair or even possible. For example, the family home may be too big for you or you may not be able to afford the mortgage. Even if you get maintenance, you may only get it for a fixed period. If so, it may be necessary to sell the home immediately or before the maintenance payments are due to stop.

   After a short marriage with no children, where one of you has made a significantly greater financial contribution, it might not be fair for the person who has made less of a financial contribution to expect housing of a standard that they have only had for a few years. But they still need somewhere to live and it’s fair that they get some help, even if it’s at a more modest level.

   Get some legal advice
   If you can possibly afford it, it will be very helpful to get some legal advice on how the court deals with property when you or your ex owns the family home.

3.  If you own the family home and there is enough money for both of you to buy homes of a lower standard.

Sometimes divorce can lead to the sale of the family home with the net proceeds of sale being enough to allow both of you to buy a new home. In most cases, these are likely to be more modest than the family home.

If you have no children and you both have similar incomes and mortgage-borrowing ability, with similar housing needs, then a 50/50 division of the net proceeds of sale is probably fair. But if, for example, your earning capacity has been limited during the marriage (and/or following divorce) because of child-care responsibilities, then you may be able to borrow less money for a mortgage than your ex. A judge will often expect the person who can borrow more to take out a mortgage (or a larger mortgage) in order to buy a new home for themselves, while the other gets a larger share of the money from the sale of the house. This will allow them to buy something of a suitable standard either with no mortgage or a smaller mortgage.

If you need to share out the money from the sale of the family home unequally, then you should think about whether the person getting the smaller share should receive a greater share of any other assets.

4. If you own the family home and there is enough money for both of you to live in homes of a similar standard.

If there is enough money for both of you to have homes of a similar standard to the family home you lived in during the marriage, then that would normally be the fair thing to do. Where you both want to buy new homes, you can sell the family home and share the proceeds of sale or one of you can keep the family home (especially if there are children) and the other buy somewhere new.

However, this will not always be fair or even possible. For example, the family home may be too big for you or you may not be able to afford the mortgage. Even if you get maintenance, you may only get it for a fixed period. If so, it may be necessary to sell the home immediately or before the maintenance payments are due to stop.

After a short marriage with no children, where one of you has made a significantly greater financial contribution, it might not be fair for the person who has made less of a financial contribution to expect housing of a standard that they have only had for a few years. But they still need somewhere to live and it’s fair that they get some help, even if it’s at a more modest level.

Jade and Steve
This is not a real case. But it shows a typical situation and how a judge might decide to share out a couple’s income and assets after divorce. They could be a same sex couple; the judge would make decisions in the same way. We hope it helps you think about how to deal with your own situation.

Jade and Steve are in their early thirties and are getting divorced after being married for five years. They separated six months ago when Steve moved out. They have two children Mark (5) and Scarlett (3). Jade has not worked since Scarlett was born so that she can look after the children. Scarlett currently goes to nursery five mornings a week. Steve works full time and earns £40,000 gross, he brings home £2,460 each month. Before having children, Jade earned £22,000 working full time. She can earn £10,000 working 2½ days each week. Her mother and Steve’s will between them look after Mark and Scarlett when Jade is at work.

Jade and Steve have agreed that the children will continue to live with Jade and will still see Steve every weekend. The family home is worth £180,000, they have an interest only mortgage of £120,000 which costs £40, per month. Steve’s rent (for a two bedroom flat) costs £600 per month. When they separated Jade contacted the Child Maintenance Service about child maintenance and they have assessed that Steve should pay £533 per month. (You can find a child maintenance calculator here Calculate your child maintenance.)

They have a joint debt on credit cards of £3,500. They both have cash ISA accounts. Steve’s has £4,000 in it and Jade’s £2,800. Steve has a small pension connected with his work worth £5,000, but Jade has no pension savings.

Possible outcome

The children need to have a home. If the family home is sold, the mortgage and the sale costs paid, there will be about £54,600 left. This is unlikely to be enough for both Jade and Steve to buy a new home each, even with a mortgage. So, as the needs of the children must come first, this means that Jade and the children should probably continue to live in the family home. Steve will need to rent a place to live. After paying his rent and child maintenance Steve is left with £1,327 each month.

Jade will not have to pay tax on her earnings of £10,000 per annum and can qualify for Working Tax Credit (as she will be working more than 16 hours each week) and Child Tax Credit. (You can find out if you are eligible for tax credits by using this calculator Tax credits calculator).

These benefits will provide Jade with about £717 each month (but the rules about tax credits are changing so this may change in the future). She will also have her Child Benefit of £149.06 per month.

So her monthly income will be about £1,699 plus the child maintenance - in total £2.232. It is fair that Jade’s income is more than Steve’s as she has the children with her most of the time, but the mortgage and other household bills have to be paid. It might be fair to suggest that Jade pays the whole mortgage. Then Steve will have £1,327 available for himself each month and Jade will have £1,832 for herself and the children.

Jade’s claim for maintenance for herself should not be dismissed now. The children are so young and the future uncertain, so she should have a nominal order to last until Scarlett goes to secondary school. (See the section on Income for information about nominal orders.)

It makes sense to pay off the credit card debt by using the money in their ISAs. If they paid the debt 50/50, Steve would have £2,250 left over and Jade would keep £1,050. No pension sharing order would be required.

Steve and Jade can keep the house in their joint names and then sell it when the children have both left school or are over the age of 18. They could agree to sell it if Jade remarries or lives with somebody else as a couple. When they sell the house, they will pay off the mortgage. What is left can perhaps be divided 60% to Jade and 40% to Steve. This division in Jade’s favour would reflect not only the continuing contribution she will make to the welfare of the family by caring for the children but also the impact that that will have on her earning capacity. Jade may then have to rent, as Steve has been doing.

B. If you rent the family home

If you rent the family home find your tenancy agreement and check whether the tenancy is in your joint names or in the name of just one of you. This can make a big difference to what can happen to the tenancy. It will also show you who is currently responsible for meeting the obligations under the tenancy agreement. If your name is still on the tenancy, even if you move out, you are still legally responsible for paying the rent until the tenancy ends or is transferred to your ex.
Try and reach an agreement with your ex about who (if either of you) is going to stay in your rented home. If you can do this, it is likely to make things much easier to deal with. Sometimes it will be possible for one of you to stay on as the sole tenant, as long as you can afford the rent (perhaps with the assistance of housing benefit or universal credit) and your landlord agrees.

If you are unable to agree, your options depend on who your landlord is – see 1 and 2 below.

While you are still married you have the right to live in a home which is rented in the sole name of your ex for as long as the tenancy continues unless a court orders otherwise. But this right stops when you get divorced unless you take steps to extend this right. For more information about this see: Renting - your rights to your home during divorce or dissolution on the MoneyHelper website.

If you and your ex are joint tenants of your rented family home, and if either one of you gives notice to quit the whole tenancy comes to an end and none of the family will be able to continue living there. If you are worried that your ex may do this against your wishes then you need think about applying for a court order to stop this happening, and transfers the tenancy into your name. Depending on your situation you may need to do this very quickly. If you give notice to quit, your local authority will probably consider you to be ‘intentionally homeless’. This means you will not be eligible for re-housing as a homeless person.

Deciding whether giving notice to quit is the right thing to do in your situation, and if so when and how to do it, are complicated questions, as is working out if you need to apply to court for an order to stop your ex from ending the tenancy. You might have good reasons for the court to decide that the tenancy should be put in just name. It is a good idea to get specialist advice as soon as possible. Depending on your situation, you may be able to get legal aid via a family law solicitor who can tell you if you need to apply to the family court for orders to protect your rights to stay in your rented family home. Not all family law solicitors offer legal aid and you have to have a low income and evidence of domestic abuse to qualify. Look at the Resolution website and look for the green tick next to the solicitor’s name.
Shelter helps people struggling with problems with rented housing through advice, support, and legal services. Visit their website for information and advice online and to access Shelter’s emergency helpline.

1.  If you rent your family home from a social landlord (a local council or housing association)

   This kind of tenancy usually gives you more favourable terms than a tenancy in the private sector, so you might both want the tenancy after you get divorced.

   If you are in this situation and you cannot agree which of you should get the tenancy then a judge can decide for you. A judge is likely to favour the parent that any children will live with after the divorce, but can also take into account the needs and financial resources of both of you. So, for example, a judge would want to know if one of you is better able to afford to rent in the private sector. They would also consider the circumstances of the initial grant of the tenancy. So, for example, a judge would want to know if one of you has a medical problem and got the tenancy in just your name to begin with because of this condition.

   Your landlord can express a preference about which of you should have the tenancy, but has to accept the decision of the court. Most social landlords remain neutral in these circumstances.

   If you agree who should have the tenancy, but the landlord objects for some reason, then the court can approve your agreement and in most circumstances the landlord will have to accept this.

   When your family separates your landlord cannot insist that you give up your property and move into a smaller one. But sometimes it is possible to negotiate with a social landlord to provide, for example, two smaller flats (one each) in return for giving up a larger one. Your landlord’s willingness to do this is likely to depend on what properties they have available. The court cannot force them to do it.

2. If you rent your family home from a private sector landlord

   In these circumstances your tenancy will probably be one which allows the landlord to end it after the initial period of time it lasts for runs out (usually six months or a year). A judge has very limited powers to stop this happening.

   It may be that neither of you want to continue with the tenancy after the divorce, in which case you may want to talk to your landlord about getting out of the tenancy obligations (in particular having to pay the rent) as soon you can. The landlord may not let you do this and a judge cannot make them.

   If either or both of you want to continue with the tenancy after the divorce, then again you need to talk to your landlord because the court will not impose any arrangement against the wishes of a landlord and you will not be able to insist on anything that is different from the original tenancy agreement.

Get some legal advice
If you can afford it, it will be helpful to get some legal advice on how the court deals with property when you or your ex rents the family home. See below for how our panel of solicitors can help you.

Other needs

• pay your debts. If there are significant debts, you will need to take these into account when you look at what you have to meet your housing needs. If possible, you should clear any debts taken on during the marriage for the benefit and support of the family to allow you both to start your life after divorce free of these debts.
• pay course fees to enable one or other of you to retrain or refresh your skills to help you get back into the jobs market.
• repair a property in which one of you is going to live.
• buy furniture and household contents. You need to decide how to share out the contents of the family home between you. It’s expensive to ask a court to do this for you so try to agree on a list of who gets to keep what. One or both of you may then need to replace furniture, appliances or other items which the other has kept, so you need to think about how to pay for those things. Whether you get the money to buy a £10 kitchen bin from the market or a £100 one from an upmarket store depends partly on your standard of living during the marriage (what kind of bin you had before) but also whether there is enough money to buy what you want.
• buy a car. If you had a car during the marriage which one of you keeps, then, depending on need, the other one may need money to buy a car.
• if neither of you has any money to meet your other needs, then in practice they are not going to be met.
   

Looking at the overall division of assets
In many situations, your different needs and ability to meet those needs may mean that it is not possible for you to share your assets equally. The person with the greater need will receive the greater share. In many cases the person with the greater need will be the person doing most of the childcare after the divorce. Their needs increase and if they cannot work full-time, this reduces their ability to meet those needs themselves.

A judge may think about whether it is possible to do anything to reduce this imbalance. So, if you have sorted out how to meet your housing needs, you could try evening up the overall division of assets – assuming you have some surplus assets to share out. This could include, for example, the person not keeping the family home getting more of any investments or a larger share of the pension funds.

Equal division of surplus assets after both of your needs have been met
In some situations, there will be enough assets to meet both your needs comfortably, and for there to be a significant surplus left over. It may be that just sharing that surplus equally would be the fair thing to do, particularly after a long marriage. However, sometimes there may be a good reason not to share equally. High value cases are complex and if you are in this situation you should get legal advice.

When deciding whether a proposed agreement is realistic, affordable and practical, think about how much income you will need, as well as your housing and other needs and their impact on each other. The running costs and day to day living expenses of two households may have to come out of the same income that previously only had to pay for one household. You may find it helpful to ask yourself questions such as:

• if I want to live in house A, will I have enough income to pay the running costs?
• do I need more income to live there?
• if so, where will I get that income from?
• does my likely income mean that I can’t afford to live in house A?
• if so, do I need to think about living in cheaper house B?

You or your ex may be eligible for some welfare benefits when you get divorced, for example universal credit, (or tax credits and housing benefit if you live in an area where universal credit is not yet phased in), council tax reduction and child benefit. This could make a real difference to your income, so it’s worth checking your entitlement. You can do this by using a benefits calculator like the one you can find here: Find benefits and grants.

If you both work and earn enough to support yourselves fully, then neither of you will need to pay the other any money to meet day to day income needs.

If one of you works but the other doesn’t or works but earns significantly less than the other, it may be necessary for the higher earner to pay a regular sum of money to support the other. You may hear this money called ‘maintenance’, ‘spousal maintenance’ or ‘periodical payments’.

Child Maintenance

Child maintenance is money paid by one parent to the other to meet the income needs of their children. You generally pay child maintenance either until your child turns 16 or until they finish full-time, non-advanced education (A levels, BTEC national diploma), up to their 20th birthday.
It is not the same as child benefit, which is paid by the State. Child maintenance needs to be included in any settlement discussions and factored into any agreement you reach.

If you can agree

Courts encourage parents to agree the amount of money the parent who doesn’t do most of the childcare will pay the other towards the cost of looking after the children.

You can find out how much child maintenance you should be paying or receiving by using the official child maintenance calculator - Calculate your child maintenance.

If you can agree the amount of child maintenance, you can include this in an application for a consent order that also deals with the rest of your finances. If either of you later decides that you are not happy with this amount, then once at least a year has passed since the consent order was made, you can apply to the Child Maintenance Service (CMS) asking them to assess the right level of maintenance. The CMS assessment will then replace what is in the consent order.

If you cannot agree

If you cannot agree the amount, either of you can apply to the Child Maintenance Service. They will carry out an assessment and, if necessary, collect the payments. However, if the Child Maintenance Service collects the money for you, they will charge the payer an extra 20% on top of the maintenance due and charge the person receiving the maintenance 4% of the maintenance payable.

Maintenance for you or your ex

The court expects both of you to contribute financially to your own needs as far as you can. However, decisions made during the marriage and/or the care arrangements needed for the children following divorce may mean that one of you will not have enough income to meet your needs. If so, the other may have to pay them maintenance, in addition to any child maintenance.

The court asks itself three questions when deciding whether to order the higher-earner to pay maintenance to their ex. You should ask the same questions when trying to reach an agreement about maintenance for you or your ex.

1. Should there be a maintenance order at all?

Ideally, couples share out their assets so that they can become financially independent of each other, either straightaway or over time (possibly, several years). This is known as having a ‘clean break’. If it is possible to achieve this, then this should be your aim. A maintenance order should help whoever gets it with the transition to financial independence, wherever possible.

However, whether and when you can achieve financial independence will depend on the circumstances of your case. Where there are children or the marriage has been long, this may not be fair or possible unless there are enough assets available to split between you and you both have enough income to be self-supporting.

The most important thing is to make sure, wherever possible, that both your needs and those of any children are met.

2. If a maintenance order is made, how much maintenance should be paid?

Unlike for child maintenance, there is no set formula to help you work out how much maintenance the higher earner should pay. The level depends on several factors:

• How much income you each have from all sources, including full-time and part-time employment, tax credits and benefits.
• How much you each need to cover your living costs, such as your rent or mortgage payments as well as day to day living expenses. You both need to write a budget that shows your income needs. Once you have done this you should exchange it with your ex and discuss them both.
• The budget sheet at the end of A survival guide to divorce or dissolution of a civil partnership is a useful starting point. The reality is that, as for many divorcing couples, it may not be possible for either of you to enjoy the same standard of living that you shared during the marriage. Both of you may have to reduce your living costs.
• How much of these living costs you can each cover from your own income.
• How much the higher earner can afford to pay, given their own needs and their other financial commitments, such as child maintenance?

In a lot of cases, once you take child maintenance payments into account, it may not be possible for the higher-earner to pay significant maintenance to their ex as well.

If you are in this situation and your ex cannot afford to pay maintenance now or if it is too early to say with certainty that you will never need maintenance, it is possible to create a safety net by making a ‘nominal order’. This is an order requiring a tiny payment, for example £1 per year, which can be varied in future to a higher amount, or cancelled, as changing circumstances require. So, for example, if the parent looking after the children is suddenly unable to work because one of the children becomes seriously ill or has a disabling accident, then if the other parent can afford to pay more at that point, this would be fair.

It is sometimes possible to reduce one person’s need for maintenance from the other by giving them a greater share of the assets on divorce.

3. If a maintenance order is made, how long should it last?

After divorce, the aim is for couples to become financially independent where this is possible. This may not happen immediately and in some cases it may not be possible at all. Much will depend on your ages, the ages of any children and the way family life was organised before divorce. However, as a general principle, the court will always consider whether it is possible to end any financial dependence as soon as it is fair and reasonable to do so.

If your ex remarries, your obligation to pay maintenance to him/her stops automatically without the need for any further order. (Maintenance for children is different. It does not stop if you remarry or register a new civil partnership.)

What happens if I (or my ex) live with a new partner?

The fact you that one of you lives with a new partner does not mean that the other will automatically lose their entitlement to maintenance.

Immediately after your marriage breaks down, you will probably focus on the things you need to sort out straight away, such as where you are going to live and what you are going to live on. But it is very important not to overlook any pensions you each have, as these will be your income when you are no longer working.

Pensions can get complicated and so we have another guide to help you on this. Go to A survival guide to pensions on divorce for a step by step guide on what to do about the pensions you both have, when you get divorced or end your civil partnership.

Do make sure you sure you look into pensions by using our guide. It can be tempting to ignore them or put off dealing with them, but that is a very bad idea. If you do, you probably won't arrive at a fair agreement, and one of you may miss out by a significant amount. 

Assets - everything you have other than income - things worth money, like houses and other property, furniture, cars, investments, savings, pensions, and jewellery.

Clean break – a clean break order ends your financial responsibilities for each other.

Dissolution – the legal ending of a civil partnership.

Divorce – the legal ending of a marriage.

Form E - the form you complete to tell the court about your finances. You can find information about how to fill in Form E in another of our guides - How to apply for a financial order without the help of a lawyer.

Legal aid – help from the government to pay for legal advice and representation at court.

Legally binding – an agreement that can be enforced by the court.

Mesher order – a court order that postpones the point at which the person moving out gets their share of the family home - usually until a specified event occurs, for example, the youngest child reaches 18 or completes their full time education.

Nominal order - an order for a minimal amount of maintenance (for example £1 a year). If you get a nominal order, this keeps open the possibility of asking for more in the future if your or your ex’s circumstances change.

Prenuptial agreement – an agreement made before you marry which sets out how you will share out your assets if you split up.

Settlement – an official agreement sorting out your finances with your ex.

Relationship and emotional support

Relate offers relationship support.  They have lots of information on their website about a range of problems that can arise in relationships and families.

How to find a family mediator

If you are looking for a family mediator you could ask friends and family for a recommendation or your solicitor, if you have one. It is a good idea to check any recommendations using the family mediator finder service on the Family Mediation Council website.

It is fine to phone around, ask how much they charge and compare prices.

For more useful information on mediation as a process have a look at A survival guide to family mediation.

How to find a legal adviser

Ask friends and family for a recommendation. You can also search here:

• find a Resolution member
• find a legal aid adviser or family mediator
• find a solicitor in England and Wales
   

Royal Courts of Justice Advice Bureau may be able to help you if you:

• live in England or Wales,
• have a case in the Family Court, and
• are not already represented by a solicitor or barrister.
   

To book an appointment, please check their website for latest appointment details.

Rights of Women offers free, confidential legal advice for women in England and Wales on family law matters (for example, about domestic violence and abuse, divorce, cohabitation, finances and property on relationship breakdown, parental responsibility and arrangements for children and lesbian parenting).

For women in England and Wales, call 020 7251 6577. Line open Tuesday to Thursday, 7pm to 9pm, Fridays 12pm to 2pm (closed on public holidays).

For women in London, call020 7608 1137. Line open: Mondays 10am - 12pm and 2pm to 4pm, Tuesdays 2pm - 4pm, Wednesdays 2pm - 4pm, Thursdays 10am - 12pm and 2pm to 4pm (closed on public holidays).

Paying for legal advice

Legal aid is only available to apply for a financial order in very limited circumstances. More and more lawyers are offering a wider range of products and services than in the past. These include:

• free or low cost initial telephone consultations
• pay as you go advice – where you pay for the advice you receive at the time you get it. This can be helpful if you don’t mind doing some of the paperwork and admin involved yourself.
• fixed fees – where you agree in advance what you are buying and what you are paying for it. This usually applies to longer pieces of work, for example, to negotiate a financial agreement.
• online services that let you buy, for example, a DIY consent order with or without a clean break or a bespoke consent order – where a lawyer will manage getting the consent order for you.

It is okay to shop around and compare prices. Look carefully at what is and is not included to make sure you buy the right service for you.

Help with dividing your money, property and possessions

The MoneyHelper offers free information and a calculator to help you draw up a budget so you can stay on top of your finances, work out what you have and what you owe and create scenarios for splitting what you have - Managing money - divorce and separation calculator

Help at court or help with a court hearing by phone or by video call

Court staff may be able to explain court procedures or help you find a court form. They are not able to give you legal advice.

Support Through Court helps people going through the court process without a lawyer. Volunteers offer a free and confidential service at some court buildings. You can look at their website to see if they have an office at your local court. The volunteers aim to help you manage your own case yourself. They cannot give legal advice or act on your behalf, but can offer practical help such as going to your hearing with you and supporting you with your forms. They can also help you if your hearing is by video or phone, by talking you through the process and sometimes joining the hearing too. They run a free national helpline 03000 810 006, open Monday to Friday 9.30am - 4.30pm. This is a good place to start for information on what they can do to help you.

Help and support for separating and single parents

Cafcass work with children and their families, and then advise the court on what they consider to be in the best interests of individual children. You can find lots of information and support on how to parent your children well with your ex, during and long after your separation, on their website.

Gingerbread provides expert advice, practical support and other help for single parents. They have lots of useful information on their website, so they ask that you look at that first before calling the helpline.

Single Parent Helpline: 0808 802 0925

Monday - 10am - 6pm, Tuesday - 10am - 4pm, Wednesday - 10am - 1pm and 5pm-7pm, Thursday and Friday - 10am - 4pm.  (Closed on public holidays).

Family lives is a national charity providing help and support in all aspects of family life. Their helpline can give information, advice, guidance and support on any aspect of parenting and family life. Family Helpline: 0808 800 2222 Monday to Friday 9am-9pm, Saturday and Sunday 10am - 3pm.

OnlyMums offers online support to parents going through divorce or separation.  The site has a free web chat facility and email exchange service.  OnlyMums and OnlyDads run the Family Law Panel, which links you up to specialist family law solicitors, barristers or mediators near you for a free initial conversation either on the phone or by email to help you work out how to go forward.

OnlyDads offers online support to parents going through divorce or separation.  The site has a free web chat facility and email exchange service.  OnlyMums and OnlyDads run the Family Law Panel, which links you up to specialist family law solicitors, barristers or mediators near you for a free initial conversation either on the phone or by email to help you work out how to go forward.

MATCH - mothers apart from their children is a charity that offers non-judgemental support and information to mothers apart from their children in a wide variety of circumstances. E-mail: [email protected]. Helpline: 0800 689 4104 9am- 1pm and 7pm-9.30pm, Monday - Friday.

Domestic violence and abuse

Disclaimer

The information in this guide applies to England and Wales only. The law is different if you live in Scotland or Northern Ireland.

The law is complicated. We have simplified things in this guide. Please don’t rely on this guide as a complete statement of the law. We recommend you try and get advice from the sources we have suggested.

The cases we refer to are not always real but show a typical situation. We have included them to help you think about how to deal with your own situation.

Acknowledgements

This guide was written and produced by Advicenow with funding from the Family Justice Council and updated thanks to funding from The Legal Education Foundation. This update was funded by the Litigant in Person Support Strategy.

Advicenow would like to thank all those who provided feedback and advice on this guide and took part in the pilot. In particular, our thanks go to HHJ Philip Waller.