The Sharing Principle

What is the ‘sharing principle’ in divorce?

The English family court’s approach to asset division upon divorce is based on its unrestrained power to enforce whatever financial settlement it considers fair. One of the key principles of fairness is the ‘sharing principle’. This directs that the starting point when determining a financial settlement should be a 50:50 split, to reflect that spouses are equal partners to a marriage.

The ‘sharing principle’ serves as the foundation for all financial awards in divorce, whereby following the House of Lords decision in White v White, the court starts from the ‘yardstick of equality’ and would need to be convinced of relevant reasons why an equal division of marital assets should not be made.  

The sharing principle is based on the fundamental concept of equality within a marriage. Marriage is often described as a partnership of equals and therefore the sharing principle states that when the partnership ends, should share "the fruits of the matrimonial partnership" on a 50:50 basis, unless there are compelling reasons to the contrary. As a result, asset distribution is no longer influenced wholly by each party’s role in the marriage, whether as a breadwinner or homemaker.     

IN WHAT SITUATIONS MAY THE COURT DEPART FROM THE SHARING PRINCIPLE? 

Generally, the Court applies the sharing principle to all matrimonial assets. However, with that being said, the Court will depart from a 50:50 financial settlement for several reasons, including: 

• A ‘needs-based’ case whereby the available assets do not exceed the parties’ needs and therefore the Court determines the financial settlement based strictly on needs. This could result in an unequal division of the assets, where for example the principle of needs – in other words, because their ‘need’ requires it. For instance, where one party is the primary carer for minor children, their need for housing and income is likely to be greater compared to the other party. 

• In short and childless marriages, the court has, in the past, departed from the sharing principle – an example being Sharp v Sharp [2017] where the wife was successful in reducing the capital sum awarded to the husband. However, it is important to note that in the case of E v L [2021] Mostyn J clarified this area of law in ruling that the fact that the marriage was short and childless did not justify a departure from equal sharing and therefore granted the wife an equal share of the matrimonial acquest. 

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