What’s included in the ‘pot’ when it comes to assets and divorce?

The distribution of assets is rarely straightforward. It would be wonderful if you could split everything down the middle, 50/50 but it rarely works out that way. Relationships, and their associated finances, are complicated, which is why it’s important that each member makes a full and frank disclosure of both individual and jointly owned assets, property, and finances when they enter into the separation process. This is a necessary first step, no matter what approach you take – court divorce, mediation or collaborative methods – and it never pays to try to hide or offload assets (in fact, it is classed as fraud and you can be fined, or ordered to pay out even more to your spouse as a result!).

The aim of full disclosure is to ensure that the combined assets of a couple are fairly distributed – in this case, ‘fair’ meaning in proportion to both members contributions to the relationship and their financial situation following separation. The well-being of any children will always be prioritised, and assets will be allotted to ensure that caregivers to provide for them, for example: living arrangements, maintenance, and education costs. There should also be a balance between financial vs practical contributions, for example when one party has been the main breadwinner but the other has put their career on hold to look after children.

But what happens when one party has personal assets they’d rather keep to themselves? And what assets are destined to end up in the pot? The short answer is that it really depends on the individual circumstances, but we’ve outlined a general overview of common asset issues below.

Assets acquired before marriage:

Often, individuals may claim that assets they’ve acquired before the marriage should be excluded from the shared pot. If it’s up for negotiation, the length of marriage will generally have an effect on this issue. For example: after around 12 years, individual assets will be considered to make up at least part of a shared pot, and after 20 years they will likely be split more or less equally. However, in a shorter marriage (e.g. up to 5 years) it may be easier to argue for protecting individual assets. It will also depend on the type of assets and whether the amount in the shared pot is adequate for supporting children etc.

Pensions:

Again, this largely depends on the circumstances, for example the duration of marriage, how long a pension was accrued before marriage, the type of pension, and whether the one spouse was not able to accumulate a pension of their own due to sacrificing work to raise children. There are also a number of different ways for allocating pension income after divorce – for a more detailed explanation read our blog on the subject.

Inheritance:

If one party receives inheritance in their name only, they could potentially argue that this money should be ringfenced from any financial negotiation during divorce. However, things become complicated if the matrimonial assets are not significant enough to provide for their spouse without the inheritance, or if the inheritance has already been put into a joint savings account or paid towards a mortgage or other joint investment.

Foreign assets, pensions & property:

Once again, when it comes to foreign assets, it depends largely on the circumstances of those involved (are you seeing a pattern here?). Foreign assets are a potentially grey area, as UK courts have certain powers to enforce against foreign assets but not others. For example, an order can be made against the sale or transfer of foreign property, pension sharing orders only work for domestic pensions. But in general, any foreign assets will potentially be considered for the asset pot, and must be declared. If one party suspects their spouse will try to dispose of foreign assets to avoid inclusion they could apply for a freezing order.

In ALL cases, the best thing to do is make a comprehensive list of all assets and consult a solicitor for further advice on your unique situation.

And remember these five simple guidelines when it comes to the declaring and distribution of assets during divorce:

1. Be sure to disclose ALL assets, both individual and jointly owned.
2. Don’t ever attempt to hide, sell, offload or alter your assets to avoid them being included in the shared pot.
3. Not all assets will be eligible for division – while others that you’d prefer to be individual may need to be divided.
4. There are many factors to consider when dividing up assets fairly, including the balance of contributions (both financial and practical) to the relationship, mortgage and rent, household upkeep and childcare, and the needs of all those involved.
5. Consult the professional advice of a solicitor before you make any financial agreements, and especially if you suspect your spouse of trying to hide assets.

For more advice on divorce, separation, and financial issues, our friendly family lawyers are here to help take the weight off your shoulders and find a resolution that suits your circumstances. Contact us to book a free 45-minute consultation (for family law issues) and decide on your next steps.