Divorce – is there a gender bias and will I get 50/50?
Is the financial division in family law automatically weighted in favour of one party?
I have often been asked by prospective clients whether there is any truth in the myth that wives fare better than husbands in the matrimonial finances. It is easy to automatically dismiss this without much thought. One party is not predestined to receive more or less of the financial division than the other simply by being the wife or the husband. However, it is interesting to consider where this perception comes from and what might lead members of the public to form this conclusion.
To negotiate a fair settlement, solicitors consider what the Court would order and each matrimonial finance case depends on its own facts. When dividing the matrimonial pot, the Court does not consider gender but it does have specific criteria set out in statute that it must observe.
The Court must place the financial needs of any children of the family at the heart of the matter and the children's financial requirements are the Court's main concern. The Court also considers the financial resources and the needs of both parties, the length of the marriage and the parties' standard of living during the marriage as well as the parties' ages and any lost opportunities arising from the marriage or contributions made, to name but a few.
Case law then refined the approach to create the principles of "needs, compensation and sharing".
However, this does not mean that cases will conclude with a simple '50/50' division of the assets. To create a fair outcome, often a party's financial needs will mean that they require more than half of the matrimonial funds to secure a stable future.
Traditionally, it has often been the case that wives have taken a more active role in their children's day to day care, with some wives taking a career break or working part time. This would often lead to a disparity in earnings between husband and wife, meaning that one had higher income, a higher mortgage capacity and a greater ability to save than the other. The party with the higher earnings would also have an opportunity to build up greater pension provision.
Today there is more of an emphasis on shared care between parents, although there are often situations where there is a still disparity between income, capital or pensions. In this situation, a stark 50/50 division, although even, would not necessarily be fair.
The parties' children would need to be housed and so this might mean that the primary carer lives at the family home until the youngest child is 18 or that when the family home is sold they need a greater division of capital to rehouse themselves with the children. If the parties do not have children, but there is still a disparity in wealth or mortgage capacity, both parties need to have their reasonable financial needs met, so far as the matrimonial finances will allow.
If one party has a higher income and mortgage capacity, the other party will need more capital to assist them. If the party receiving more than 50 per cent of the finances is the wife, it can wrongly fuel the myth that wives have an unfair advantage.
Considering this further, it is not just capital that is divided in the matrimonial finances. Pension provision will need to be considered and, where there is a disparity after a long marriage, it is common for pension provision to be appropriately shared. This can come as an unwelcome surprise to the party who paid into the scheme. If it is the husband who has significant pension provision compared to the wife, it can again appear that the wife is at an advantage having received a portion of "the husband's" pension. It is very important to remember, though that pensions are in fact matrimonial assets and quite rightly should be considered in the division of the finances.
The issue of maintenance adds to this. If there are children of the marriage, the parent with primary care is legally entitled to receive child maintenance for the children's benefit. If the mother is the primary carer the father will therefore have to pay maintenance to the mother.
If there is a significant disparity in the income generated by both parties, the higher earner may also have to pay maintenance to their spouse for a time. The approach taken by the Court has increasingly focussed on individual autonomy over recent years, making joint lives maintenance increasingly rare, but still there may be maintenance paid for a term. If the more affluent party in this situation is the husband, he will be the paying maintenance to the wife from his income, which again could appear as if the wife is at an advantage.
Instead of a perceived gender bias, it is instead important to remember that a fair outcome may not necessarily be that there is an equal division of capital and financial resources (or with each party keeping 'their' own assets and income). Where there is a notable disparity in wealth and/or income the more affluent party may feel that they are in a less advantageous position. Historically, in family dynamics where a the husband has been the wealthier party it could be incorrectly assumed that the wife fares better than the husband if she were to receive a greater share of capital, pension provision and/or maintenance. This is not the result of weighted odds against husbands though, rather the need for the parties' wealth and income to be redistributed between the parties to achieve fairness in the eyes of the Court. To meet the needs of the less affluent party or to achieve fair sharing, the wealthier party may feel that they have 'lost' more by having the matrimonial assets and income that they perceived as their own taken into account in the parties' financial division.