Money is one of the main causes of arguments between happily married couples – so it's easy to understand the problems it can cause those heading for divorce. Alongside the emotional trauma of a break-up sit the financial implications of dividing assets, sorting out debts and setting up new homes.
Making matters worse is the fact that the law is not clear-cut. "The law in this country is very discretionary so there's no simple answer to what looks like a simple question," says Nigel Shepherd, a partner at Mills & Reeve and spokesperson for Resolution, an organisation of family lawyers. "If you go to 10 different lawyers or 10 different judges with the same set of facts you'll get 10 different answers." However, some general principles still apply. Here, our team of lawyers explain how five of the most common battles are usually settled.
1 My ex has left me in debt. Can I get him to pay what he owes without destroying my credit rating? This all depends on whether they were joint debts and if they were racked up during the marriage, advises Paul Read, a partner at Stowe Family Law. "If they were then you will probably be responsible for half of them upon separation," he says. "If they were your ex-husband's debts and he spent the money on himself then this should be taken into consideration and his debts should remain his, not yours." A bad credit rating can be very debilitating so the best advice is to sort out debt problems as soon as possible, says Christina Blacklaws, director of family law at Co-operative Legal Services. "Close all joint accounts and separate liabilities," she says. "You might need help from the likes of the National Debt Helpline in order to consolidate your debts so they can be paid back in a reasonable way." Debt issues can also be sorted out as part of an overall financial settlement, points out John Nicholson, a partner in the family law team at Irwin Mitchell. For example, even if the wife has to pay initially, the husband could be required to pay it back by way of increased maintenance. "The court will always try to ensure there is some kind of financial fairness between parties and that usually means neither ends up with all the debt unless one has clearly spent all of the money," he explains.
2 I brought all the savings into our marriage and paid all the bills. Now my wife says she's leaving me and demanding everything is split 50-50. Can she do that? The answer is possibly, according to Sharon Bennett, a partner at Bross Bennett Solicitors, it depends on how and when the money was used. If, for example, it has been put into a jointly owned home it's difficult to argue it belongs to just one partner.
"Money earned during the marriage is classed as a matrimonial asset," she explains. "It doesn't matter who has gone but to work because a wife's contribution through childcare will be regarded as equal value." The court will try to divide assets equally, but move away from equality in order to achieve fairness, for example if 50% is not enough to meet one person's needs.
It's often easier to argue where the money came from if you haven't used it, adds Nicholson.
"If you've had it in a separate bank account and have both survived without it there's a good chance you'll be able to keep some or all of it," he says.
3 I gave up work to look after our children but now my husband has left me and I've no idea how we are going to pay for two homes. Can I be forced back to work? No one can force you to work but a judge will generally expect you to at least make a contribution to your financial welfare. "Judges don't like it when people say they can't work at all but they will also be realistic and take into account childcare issues and your earning capability," Nicholson says.
You will also be entitled to seek a financial contribution from your husband as part of the divorce process, which can include maintenance for yourself and your children, adds Read.
"The Child Support Agency will assess your husband's income and deduct a percentage depending on how many children you have," he explains. "If the children live with you, then the courts will look to ensure that your reasonable needs and those of the children are met from matrimonial assets, including your husband's income." However, it's worth remembering the situation will change should a new partner move into your home. "Co-habitation will almost always trigger a downwards review of maintenance," Bennett explains.
4 As well as a generous maintenance payment my ex-wife is also getting tax credits and benefits. Is there anything I can do about this? Probably not, according to Bennett. "Be grateful she's getting the child tax credits because it's probably reducing what she would otherwise be getting from you," she says. "A maintenance payment will be made on the basis of your wife's reasonable needs and your ability to pay." Any maintenance order should have been calculated taking into account tax credits and benefits – so if these began afterwards you could ask her for a reduction in the level of maintenance paid, suggests Read.
The court will always try to make a financial order as fair as possible but most of the money will be headed for where the children spend most of their time as their needs come before anything else, says Nicholson.
This can result in a bad deal for dads. "You do have terrible situations where the mother ends up not only keeping the house (even though dad may have a charge on it to be realised when the children grow up) but also taking a big chunk of his income so he ends up in a complete poverty trap," he adds.
5 I earn more than my wife so does this mean I will have to pay more than an equal share in our settlement? The answer is yes, according to Nicholson, although it depends on the length of the marriage, if you have children, and whether your wife has given up a good job to raise them. "The court will try to ensure there's not an overwhelming disparity between how mum and dad live so there's a chance the higher earner will end up subsidising the other," he says.
This can even be the case in childless marriages because the issue as to whether the wife can increase her earning capacity will be taken into account. Many men, for example, have made rods for their own back by encouraging their wives to take up hobby professions, he explains. "Some men are very good at forgetting they were perfectly happy with the situation when the marriage was OK, but now want their wives to earn more," he explains. "They can't expect them suddenly to become brain surgeons at the age of 40 or 50." Vote in the Consumer Opinion Survey and get a free copy of Moneywise