Expert Witness Journal Issue 67 June/July 2026 - Flipbook - Page 92
(昀椀nancial provision for children) and the Trusts
of Land and Appointment of Trustees Act 1996
(for property ownership disputes). An individual
in receipt of a damages award may therefore still
have some exposure to a 昀椀nancial claim by a former
partner even if they were not married.
the duration of the marriage, any physical or mental
disabilities and each party’s contribution to the
family.
As established in the House of Lords in White v
White [2000] 2 FLR 981, the court’s overarching
objective is to achieve a fair outcome between the
parties. A departure from an equal division of assets
will only be justi昀椀ed where there is a good reason
for doing so. In order to achieve fairness, the court
is guided further by the principles of needs, sharing
and compensation as set out in Miller v Miller;
McFarlane v McFarlane [2006] UKHL 24.
So, how does a personal injury award 昀椀t into this
distribution of assets on divorce?
The legal treatment of a personal injury
award on a divorce
On divorce, personal injury awards (ie, the
compensation that an injured person receives after
making a successful personal injury claim) are not
automatically ringfenced for the sole bene昀椀t of the
injured spouse.
In the majority of cases, the division of assets will
be determined on the basis of the parties’ needs
(generously interpreted). Where there is a surplus
of assets over and above what is required to meet
their needs, the principle of sharing will come into
play. Sharing will, however, apply to matrimonial
property only, ie, property that is a product of the
marital endeavour, as opposed to non-matrimonial
property, which may only be invaded (ie used) to
satisfy the principles of needs and compensation.
This was recently con昀椀rmed in the Supreme Court
case of Standish v Standish [2025] UKSC 26.
As with other assets, damages awarded in a personal
injury claim must be disclosed as part of the 昀椀nancial
remedy process. This was expressly dealt with in
the case of Wagsta昀昀 v Wagsta昀昀 [1992] 1 FLR 333.
Whether the award is reserved solely for the injured
spouse or split between the parties will depend on
whether the court considers it to be a matrimonial
or non-matrimonial resource. That, in turn, may
depend on when the award was received and how
the award has been used. If the award is deemed to
be non-matrimonial, it may nonetheless be invaded
if the other assets available are insu昀케cient to meet
the uninjured party’s needs. Due to the overarching
principle of fairness and the requirement to meet
both parties’ needs in 昀椀nancial remedy proceedings,
personal injury awards may therefore be considered
when meeting the needs of the 昀椀nancially weaker
party on divorce.
Examples of matrimonial property might include
the family home and savings that have accrued since
the date of marriage. Non-matrimonial property
might include inheritance received, assets built up
since the couple separated or assets that a spouse
owned before marriage and kept entirely separate
during the marriage. For the purposes of this
article, personal injury damages would likely start
from a presumption that they are non-matrimonial.
However, as explored in the case of Standish, assets
can be ‘matrimonialised’ and there are therefore
many scenarios in which the categorisation of those
assets is not clear cut.
An award that has been used as a joint resource or
intermingled with other matrimonial assets (for
example, one that has been invested into a joint asset,
such as the family home) is more likely to be treated
as matrimonial property. It follows that the court, as
part of its discretionary exercise in determining an
appropriate division of assets, has the power to make
an order in relation to the personal injury award (or
property derived from the award) for the bene昀椀t of
either spouse, even if that outcome is undesirable
for the injured party. The personal injury award may
therefore be at risk of redistribution.
The principle of compensation is rarely engaged, but
would be relevant where it could be shown that there
is a relationship-generated disadvantage that should
be taken into account (for example, signi昀椀cant
career sacri昀椀ces made by one spouse to bring up
the children). (Note, compensation in this context
refers to an adjustment to the 昀椀nancial outcome
to re昀氀ect that disadvantage and not the damages a
party has been awarded following an injury.) In high
net worth divorces, the matrimonial property often
exceeds what is required to meet needs, in which
case the court can determine the extent to which
surplus assets should be shared between the parties.
On the other hand, an award that has been used
solely to the bene昀椀t of the injured spouse (for
example, for their care or rehabilitation) is more
likely to be excluded from the matrimonial pot and
reserved only for the injured spouse on the divorce,
so far as is possible.
While this article addresses the 昀椀nancial claims
that can be made on divorce, it is worth noting that
cohabiting couples are the fastest-growing family
type according to the O昀케ce for National Statistics.
When unmarried couples separate, however, the
昀椀nancial claims that can be made are limited to
those under Schedule 1 of the Children Act 1989
EXPERT WITNESS JOURNAL
The form of the award is also likely to be a relevant
factor: whether a simple lump sum, ongoing
payments or a hybrid of both.
Given the wide discretion a昀昀orded to judges in
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