I’m a family lawyer, mediator and collaborative lawyer and a lot of what TBirdUK says is absolutely right. There are three principles: “sharing”, “needs” and “compensation”. Everyone can ignore “compensation” as it’s only relevant to the extremely wealthy where the assets far exceed needs.
For most people, “sharing” and “needs” are the most relevant. The “sharing” principle says that you each have the right to share equally in what has been built up during the marriage (and the length of the marriage will be extended by any pre-marital cohabitation which runs seamlessly into marriage). In this context it doesn’t matter who was the breadwinner and who was the homemaker. This applies to capital (housing / savings / debts) and pensions.
The sharing principle is just the starting point. If someone (usually the wife who has not worked whilst being at home with kids) needs more than their share under the sharing principle, eg for housing (because they have a lower mortgage raising capacity than their spouse) then there can be an adjustment in their favour to meet needs. This is why you will often hear of there being a 60/40 or 65/35 or 70/30 division in some cases - it usually reflects the fact that an adjustment was required for “needs”.
Income is different - the sharing principle does not apply to this and it solely comes down to needs. Therefore the longer a separated spouse lives without any support, they will have a harder time trying to justify a need for maintenance if they’ve lived independently, and not incurred debt during that time to support themselves.
The factors to consider in your situation are:
- if you are solely paying down the mortgage and increasing the equity you may not be able to ring-fence this or claim it back in the future if the division comes down to needs. Whilst this contribution is, per se, a post-separation non-matrimonial contribution, if the division comes down to needs it could be disregarded.
- would you prefer to keep your head down and live in the property for as long as you can without having to sell it (if that is the likely outcome and you are not able to pay her a lump sum to buy out her capital claims)
- whilst you do nothing, the claims which arise out of the marriage remain live and open - ie she can claim against you at any time (and vice versa). This means that if you have a windfall in the future - E.g. a significant gift or inheritance, she could still claim against it (as above - even though this would be lost-separation and non-matrimonial these type of resources can still be invaded to meet needs). Poor old Mr Page found that out the hard way in 2010:
https://news.sky.com/story/lottery-winner-forced-to-pay-ex-wife-2m-10490786
If you opt to go ahead and do something now, you will need advice on what is a fair settlement based on the points I’ve outlined above - how much of what you have is “non-matrimonial” (so does not fall to be shared under the sharing principle but could be invaded for needs) and how much is “matrimonial” (which would be shared equally irrespective of needs). You can then go from there in how you approach it - this could be talking to your ex direct (if that’s possible), or using a mediator, negotiating via a solicitor, collaborative law process (which involves agreeing not to go to court), family law arbitration or as an absolute last resort the court process.
www.resolution.org.uk has a lot of useful information. It’s the national organisation of family law professionals and there are helpful guides on there.
