Divorce Study Uncovers Legal Deficits Impacting Fair Outcomes in England and Wales

08 January 2024

The Nuffield Foundation recently released findings following a comprehensive study of the financial arrangements that people make when they divorce in England and Wales. The study entitled “Fair Shares? Sorting out money and property on divorce” was published on 1st November 2023. It evaluates the extent to which the divorce system enables divorcing couples to reach fair outcomes.

The study was commissioned against the backdrop of increasing criticism in recent years of the law governing finances on divorce. The study acknowledged that much of this criticism was based on reported cases of high value, which make up the minority of the general divorcing population. In contrast, very little is known about how the law works for the majority of divorcees. While approximately 100,000 couples divorce each year in England and Wales, of these, only around one third leave the marriage with a Court Order, most of which are made by consent.

Fairness and equality

The study highlighted the financial vulnerability of many female divorcees. Up to five years after the divorce, women, and in particular mothers with dependent children, were on average worse off financially than men. This financial vulnerability impacted on many women’s ability to achieve a standard of living post-divorce comparable to that which they had enjoyed during the marriage. Conversely, men were more likely than women to move into or remain in higher income bands than before the divorce.

Lack of awareness in pension entitlement

The study found that there was a lack of awareness amongst many divorcees of how or indeed whether pension provision should be considered in a financial settlement. It appears that a general lack of interest in the pension and a belief that it should remain with the spouse who contributed to it were the main reasons for the failure to see it as a potential sharing resource.

Abuse contributing factor to poor deals

The study also showed that domestic abuse was an important factor in cases where divorcees had ‘settled’ for poor or even no deals, reflecting their weak bargaining power and the continuing control that the dominant party exerted over them even years after separation.

Legal advice leads to more positive outcomes

The study found evidence of a difference in outcomes for those divorcing couples who had the assistance of legal advice compared with divorcees who did not obtain legal advice. The provision of legal advice appeared to protect individual divorcees, especially wives, from unfair financial arrangements. In particular, the use of legal advice was linked to a greater likelihood of wives receiving ongoing support, a share of pension and a higher share of the proceeds of sale of the matrimonial home.

The majority of divorcees incurred costs in trying to sort out their finances on divorce. It is interesting that, contrary to popular misconception, the study found that the amounts spent were relatively modest. Unsurprisingly, the costs were generally higher in divorces where the assets were higher. The study found that while very substantial sums can be spent on pursuing legal proceedings, legal costs were not inevitably or commonly high.


The Matrimonial Causes Act 1973 is the law which governs the division of finances on divorce in England and Wales (which is equivalent to our legislation found in the Matrimonial Causes (NI) Order 1978). The study concluded that the broad discretion provided by this legislation to tailor financial arrangements to meet the individual circumstances of each couple is proportionate and necessary, particularly given the range and disparities in wealth and earning capacity of the divorcing population as well as couples’ own priorities and circumstances. It recommended against any legal presumption of equal sharing of assets, commenting that this would be more likely to “cement inequality” between husbands and wives, with mothers and older wives doing particularly badly.

Instead, the study recommended that policymakers need to focus their attention on how to enable couples to take full account of all their assets and future prospects when deciding on what would be the appropriate outcome for them and their family. In particular, greater consideration needs to be given to how pensions may more readily be factored into the arrangements that couples make, if real fairness - as distinct from notional ‘equality’ - is to be achieved.

Overall, the research recommended that steps should be taken to address the deficit in knowledge about the law and legal procedure among the divorcing population in England and Wales. The purpose of this would be to provide couples with a clear understanding of what issues they should be focusing on, including the range of assets (most notably pensions) that can and should be considered and the principles that should guide their arrangements as well as how to reach a settlement. The study also recognised the supervisory value of court scrutiny to ensure fair arrangements and to enable couples to have the finality and certainty of Court Orders.

For advice & assistance in respect of any divorce or matrimonial matter, contact Claire Edgar on cedgar@fhanna.co.uk or call 028 /9024 3901