In England and Wales, a spouse who earned little or nothing financially can still be entitled to a half share of matrimonial assets in a divorce financial settlement. This is because the law treats marriage as a partnership of equals, where non-financial contributions, like homemaking and childcare, are valued alongside earning money.
The starting point in a divorce is a 50/50 split, but it is not guaranteed. Courts have broad discretion, and several factors can move the outcome away from an equal division.
What is a fair distribution of assets between spouses when they divorce?
Fairness sits at the heart of every divorce financial settlement, but people can hold very different views of what ‘fair’ looks like.
When someone asks, “Should my spouse get half in divorce?”, the real question is whether it’s fair for assets built up during a marriage to be shared equally, regardless of who earned them. In other words, should a person who did not earn or receive the assets still get a share of them?
If you’d like a quick estimate of your own position, try our divorce calculator.
What’s the difference between matrimonial and non-matrimonial assets?
Matrimonial assets include everything you or your spouse own, whether held jointly or in a sole name. Common examples include:
- The family home (including any outstanding mortgage)
- Pensions
- Savings and investments
- Shares
- Businesses
- Vehicles
- Jewellery
Non-matrimonial assets are assets that may fall outside the shared pot. Typically, because they were acquired before the marriage or came to one spouse alone. Common examples include:
- Pre-acquired property owned before the marriage
- Inheritances received by one spouse
- Personal gifts made to one party
- Wealth built up after the couple separated
Solicitor’s tip: Non-matrimonial assets can lose their protected status if they become ‘mingled’ with matrimonial assets.
Inheritances are a common example of where this can catch people off guard. An inheritance received during the marriage may be treated as non-matrimonial, particularly where it has been kept entirely separate from joint finances.
But if it was paid into a joint account or used toward the family home, it can lose that protection and become part of the assets available for division. And even where an inheritance remains technically non-matrimonial, a court may still draw on it where the other party’s housing or income needs cannot otherwise be met, also known as the needs principle.
You can read more about how inheritance is treated in divorce in our latest advice.
How do courts treat unequal financial contributions in divorce?
Courts treat financial and non-financial contributions as equally valuable – meaning a spouse who earned less, or nothing at all, is not automatically at a disadvantage when assets are divided.
Although less common these days, circumstances may still arise where one party is the primary earner. This arrangement naturally creates an imbalance in earnings and in the value of assets each party acquires, which the court takes into consideration.
What does Section 25 of the Matrimonial Causes Act 1973 say?
Section 25 of the Matrimonial Causes Act 1973 sets out the factors a court must weigh when deciding a financial settlement. There is no single formula. Instead, the court balances the whole list, with first consideration given to the welfare of any children under 18.
Section 25 factors the court takes into consideration include:
- Contributions to the welfare of the family: Each party’s contributions to the family, expressly including looking after the home or caring for the family
- Financial needs, obligations and responsibilities: The financial needs, obligations and responsibilities each party has, or is likely to have
- Income, earning capacity and resources: What each party has now or could reasonably obtain in the future
- Standard of living: The standard enjoyed by the family before the marriage broke down
- Age of each party and length of the marriage: Both can affect how assets are divided
- Any physical or mental disability: Of either party
- Conduct: But only where it would be inequitable to disregard it
As Section 25 requires the court to value homemaking and childcare, a spouse who ‘contributed nothing’ financially has, in the eyes of the law, often contributed a great deal.
Zanariah Webster, Senior Associate at our family law office in Camden, says:
“A spouse who contributed sacrificed a career to look after the family could be entitled to higher share of the matrimonial assets because they have not had the opportunity to climb the career ladder and therefore has a greater ‘need’. Their earning capacity, mortgage raising capacity and pension contributions are potentially capped at the time they stopped working.
“Depending on the duration of the marriage and the length of time the spouse has not worked, their skillset would also be minimal making it difficult for them to enter the job market. However, greater entitlement to the matrimonial ‘pot’ is caveated with the quantum of the pot and their respective needs. Every case depends on its merits in financial cases as no two families are evert the same.”
Why is a fair divorce settlement rarely straightforward?
Whether a divorce settlement feels fair often depends on which side of the financial picture you’re looking at. Two people can look at the same set of facts and reach very different conclusions about what a fair outcome should be, and both can have a point.
A breadwinner may feel their financial effort deserves more direct recognition in the outcome. A stay-at-home parent may worry their contribution will be undervalued. Both responses are understandable, and the law is designed to hold that tension, rather than resolve it in favour of either side. That is why the court has discretion to look at the whole picture, not just who earned what.
This means the outcome can look very different depending on the couple’s specific circumstances, including the length of the marriage, the needs of any children, and how assets were built up over time.
If you stepped back from work to care for your family, our guide on stay-at-home mum divorce rights explains what this means for your settlement.
Every case is different, and outcomes can vary even where the legal principles are the same. The court can depart from a 50/50 split where the full picture makes that the fairer result or uphold equality where it doesn’t. What matters is that no single factor decides the outcome on its own.
When might a spouse receive less than half?
A 50/50 split is the starting point, not the guaranteed outcome. Certain circumstances can impact the split of assets.
Short marriages without children
In shorter marriages without children, the court may be more willing to depart from an equal split, particularly where there hasn’t been time to build a genuinely intertwined financial life.
Each party may leave with a larger share of what they brought in, though needs (especially housing) still take priority.
Negative contributions and financial misconduct
In rare cases, one party’s conduct can reduce their share. The behaviour must be so serious that it would be inequitable to ignore it. Examples of ‘negative contributions’ include:
- Reckless dissipation of assets: Gambling away significant sums or deliberately wasting money
- Hiding or concealing assets: Attempting to keep wealth out of the settlement
- Deliberate financial harm: Running up debts or damaging the other party’s financial position on purpose
Ordinary financial disagreements, or unwanted behaviour during the marriage, will not meet this threshold. For example, it is rare that adultery will affect a divorce.
Courts are careful not to reopen the rights and wrongs of the relationship, only conduct that is serious and financial in nature, such as hiding assets or recklessly spending down significant sums, is likely to make a difference.
The ‘special contribution’ exception
In a small number of high-net-worth cases, one spouse may argue they made a special contribution. A genuinely exceptional financial contribution that justifies departing from equality. The bar is extraordinarily high, and the courts have deliberately kept it that way to avoid discriminating between the roles of ‘breadwinner’ and ‘homemaker’.
In Cooper-Hohn v Hohn [2014] EWHC 4122 (Fam), for example, the exceptional scale of one party’s generational wealth was recognised, but such outcomes remain rare and are reserved for truly extraordinary circumstances. For the vast majority of divorcing couples, the ‘special contribution’ argument will not apply.
My spouse paid nothing toward the mortgage or deposit and isn’t on the title deeds – do they still get half?
Yes, they may still be entitled to a share – potentially up to half. The family home is almost always treated as a matrimonial asset in divorce, and legal ownership alone does not determine the outcome.
Whose name appears on the title deeds, and who paid the mortgage or deposit, are factors the court will consider, but they do not decide the result on their own. The court’s priority is housing both parties and, above all, any children.
What this means for your settlement
Divorce law in England and Wales doesn’t follow a simple formula, and that’s by design. Whether you were the higher earner or the one who stepped back from work, the outcome will depend on your specific circumstances:
- The length of your marriage
- The needs of any children
- How your assets were built up
- What a fair result looks like for both of you going forward
The legal exceptions around non-matrimonial assets, inheritances, and conduct can shift the picture in ways that aren’t always easy to predict without professional advice. Given these complexities, having specialist advice helps ensure your contributions are fully recognised.
Financial settlements can be agreed through negotiation, mediation or court proceedings, and our financial settlement solicitors can help protect your position while keeping the cost of your divorce in mind.
Contact us today to see how we can support you.
Keep reading…
What am I entitled to in a financial settlement?
How are assets split in a UK divorce?
What are my financial rights in a divorce?
Originally written June 2024
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