‘Fair to Us’: Legal Myths and Privately Negotiated Financial Settlements

Introduction

Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) dramatically curtailed publicly funded legal aid in private family law matters, the expectation that separating couples will resolve complex financial arrangements without legal help has become the norm.

In 2025, 105,704 final orders were issued in England and Wales, with 49,067 financial remedy applications made.[[1]] Research confirms that many divorcing couples reach financial arrangements informally, without ever applying for a financial remedy order.[[2]] Policy makers have framed this shift as promoting autonomy, reducing conflict and empowering couples to take control of their own futures.[[3]] But what happens when couples negotiate in the absence of legal advice? What principles guide them? And what does ‘fair’ mean to people who have never seen the inside of a courtroom?

This article draws on qualitative research with divorced women to examine how cultural narratives about fairness, ownership and entitlement, described here as legal myths, replace legal principles in privately negotiated settlements. Three myths are particularly influential: ‘50:50 is fair’, ‘his money, he decides’ and ‘what’s mine is mine’. Each is familiar territory for practitioners; less familiar, perhaps, is the structural role these myths play when no lawyer is present to challenge them.

The implications are practical and pressing. Private ordering now dominates the landscape of financial remedy work. Practitioners and judges encounter its results daily: in consent orders that arrive without legal representation; or in cases where needs have gone unmet because one party simply did not know that they could ask for more. Understanding how legal myths operate, and what they displace, matters for how we approach those cases.

The research

The findings are drawn from semi-structured interviews with 32 civilian women, all of whom had previously been married to serving members of the British Army, all divorced in England and Wales. Interviews were conducted between 2018 and 2019 and analysed using thematic analysis.[[4]] Participants had obtained their decree absolute at least 12 months prior to interview, allowing reflection on both process and outcome.

Military families provide a particularly illuminating context for examining private ordering. Military service is associated with long deployments, unpredictable working hours and frequent relocation, producing gendered divisions of labour.[[5]] Non-serving spouses absorb responsibility for childcare and domestic work, while the serving spouse’s career is institutionally prioritised.[[6]] As a result, military wives frequently exit marriage with constrained earning capacity, limited pension accrual and significant economic dependency.[[7]]

The headline findings are stark. None of the 32 participants instructed a solicitor in relation to finances and none applied for a financial remedy order. Only two received any legal advice at any stage of the divorce process and mediation was rarely used. Settlements were negotiated informally, without full disclosure or asset valuation and almost entirely without reference to legal principles.

While the context of military families is specific, the dynamics at work are not. Informal settlement is widespread across divorcing couples more generally,[[8]] and the patterns identified here are recognisable across everyday financial remedy practice.

Private ordering: the gap between policy and reality

The shift towards private ordering has been driven by a consistent policy narrative: that couples are best placed to resolve their own financial arrangements; that legal intervention is a last resort rather than a safeguard; and that self-resolution promotes autonomy and reduces conflict.[[9]] The removal of legal aid in private family matters under LASPO was framed within this logic.[[10]]

There is something intuitively appealing about this account. Parties who are separating amiably, who know their circumstances better than any judge might, and who want to move on with their lives should, in principle, be capable of reaching fair agreements. The problem is that this model assumes broadly equal bargaining power, financial knowledge and, critically, knowledge of what the law would otherwise provide.

Family law practitioners recognise, however, that intimate relationships are characterised by interdependence and inequality: in earnings, information, confidence and post-separation resources. Decisions made during the marriage, particularly about caregiving and employment, carry long-term financial consequences that are rarely visible to those who made them.[[11]]

Financial remedies law acknowledges this reality. Section 25 Matrimonial Causes Act 1973 requires the court to have regard to all circumstances of the case, with the first consideration being the welfare of any minor child of the family. In Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, the House of Lords articulated the principles of needs, sharing and compensation as guiding principles. Those principles reflect an acknowledgement of the value of non-financial contributions. Crucially, however, this recognition operates primarily within the formal legal system. In private negotiations conducted without legal advice, they are replaced by something else entirely.

Legal myths in privately negotiated settlements

Without legal advice to guide them, the participants in this study drew widely on shared cultural narratives about what a fair settlement looks like; narratives that often bore little resemblance to what a court would order. Three myths in particular shaped how negotiations were conducted and how outcomes were understood: (1) that the primary earner is entitled to determine the division of assets; (2) that fairness demands a 50:50 split; and (3) that assets perceived as belonging to one party are beyond the scope of negotiations.

‘His money, he decides’

The most pervasive myth identified was the belief that the spouse who had earned the income was entitled to determine how assets should be divided upon separation. Primary earner status was treated not simply as a financial fact, but as a source of moral authority over the negotiation itself.[[12]]

Gemma’s account is representative:

‘I’d say he was the one who ultimately decided how we were going to split things. I suppose it was no different to when we were married. There was no animosity, and I wasn’t going to argue with him. What was the point? It was his money and he could decide what to do with it. He’s always been fair, and I thought it was fair, so I wasn’t going to argue.’

What is striking about this and similar accounts is the continuity between the financial dynamics of the marriage and those of its dissolution. Deference to the primary earner, established and normalised during the marriage, simply carried over into the negotiations. Trust in the primary earner’s inherent fairness did the work that legal advice would otherwise have done, and because there was ‘no animosity’, there was no perceived reason to challenge arrangements that might, on examination, have fallen well short of what needs-based reasoning would require.

The desire to preserve cooperative parenting relationships was also significant. As Kathryn explained: ‘Why would we involve a solicitor? … I have to still deal with him afterwards, what with Fin [their son] and that, so I don’t want to do anything that would rile him up’. Instructing a solicitor was perceived not as a legitimate step in securing a fair outcome, but as an act of aggression likely to damage an ongoing relationship. The cost of asserting legal entitlement, in relational terms, was too high.

Practitioners will recognise the practical implications. In everyday cases, the issue of needs (particularly the housing and income needs of the primary carer, and above all the welfare of the children) is the dominant consideration, frequently resulting in an unequal distribution of the assets.[[13]] The conflation of economic authority with legal entitlement is not merely a conceptual error on the part of the parties; it is a structural failure with real financial consequences for those who do not know what the law would have given them.

‘50:50 is fair’

A second dominant myth was the belief that fairness means an equal division of assets, irrespective of differing needs, responsibilities or future financial prospects. Many participants understood equal division as both legally required and morally correct. Its appeal is obvious: it promises balance and closure without requiring difficult conversations about individual circumstances.

Many participants, including Amy, were unequivocal:

‘Well, I told him that I should get 50:50 of everything, and I did. That’s the fairest way, just split it down the middle: I get half; he gets half. Why would we need to go to a solicitor when it’s as easy as that? Half and half. Easy.’

The problem – which many practitioners will immediately identify – is that substantive equality frequently requires unequal outcomes. Where one party retains primary caring responsibilities and reduced earning capacity, an arithmetically equal division may leave needs unmet and provide inadequate long-term security. Among participants, the 50:50 heuristic often functioned not as a floor but as a ceiling on claims. Kerry’s account illustrates this clearly: ‘I said to him that I wasn’t going to take anything less than half. I was always the one who was going to have the kids, so that’s the least he could do’. Framed as a maximum entitlement, the 50:50 norm here sets a limit on what Kerry was prepared to negotiate for. The fact that she would be the primary carer of the children (and suffer the long-term financial consequences that follow from primary caregiving) did not translate into a claim for more than equal division. The principle of needs, which might have justified a higher award, was simply absent from her reasoning.

Some participants expressed the 50:50 norm in explicit terms. Rachael believed: ‘It’s supposed to be half each … That’s what the law says is fair’. This conflation of formal and substantive equality matters for practice. When parties arrive at an agreement founded on the premise that half is what the law requires, and when that agreement may in fact fail to meet the needs of the primary carer and dependent children, the question of what scrutiny ought to apply to a resulting consent order becomes pressing.

Jennifer’s account adds a further dimension: ‘If I’m really honest, I didn’t really think about the future, it was more about what we needed straight away … I suppose I accepted less than I wanted’. The absence of legal advice meant there was no framework within which to weigh immediate needs against long-term financial security. Short-term pressures, such as the urgency to resolve things, financial exhaustion and emotional depletion, drove outcomes. Future pension entitlement, earning capacity and retirement security were not considerations.

‘What’s mine is mine’: ownership and pensions

The third myth concerned ownership assets acquired before marriage, held in one name or associated with one party’s employment, which were treated as belonging to that party alone and placed beyond the scope of negotiations. This bears little relationship to how financial remedies law actually operates, where the concept of needs permits a holistic assessment of all resources without treating individually held assets as automatically ring-fenced.

Pensions were the most striking example. Despite frequently representing the most valuable asset in everyday cases – particularly where the family home may not be owned[[14]] – pensions were consistently treated as personal property belonging to the earner and excluded from negotiations as a matter of course. The accounts across interviews were remarkably consistent:

‘He kept his pension – it was his. I didn’t earn it.’ (Kate)

‘His pension never came up to be honest. I just didn’t think about it.’ (Amy)

‘It was his pension, not mine.’ (Beth)

‘His pension didn’t come into it … it was a given that it was his.’ (Tara)

The logic underlying these accounts reflects breadwinner ideology in which financial contributions are valued whereas non-financial contributions are not.[[15]] The military pension, which is a form of deferred pay accrued through service, was understood as exclusively attributable to the serving spouse. The significant contribution made by the non-serving spouse, in enabling that career through the absorption of domestic and childcare responsibilities, was invisible in this framework and not reflected in the outcome.

The consequences are serious and well-documented. The gender pension gap is substantial and is directly connected to women’s interrupted labour market participation and lower lifetime earnings.[[16]] Pension sharing orders are one of the most powerful tools available in financial remedy cases for achieving long-term fairness, yet they remain chronically under-utilised even in proceedings conducted with legal representation.[[17]] In settlements reached without any legal advice, this omission appears to be near-universal; many participants effectively traded financial security for immediate stability, without any informed assessment of what that trade was worth.

The cost of ‘keeping the peace’

Across the study, participants expressed strong resistance to instructing solicitors. Legal professionals were characterised as expensive, adversarial and likely to inflame what might otherwise be an amiable process. Avoiding lawyers was framed not as a constraint, but as a positive choice: positive, practical and in the best interests of the children.

Stephanie’s account captures this framing: ‘We both agreed not to involve solicitors. We had enough to deal with without them making it worse. We got on, so why make it worse?’ The solicitor appears here as an agent of conflict, rather than as a source of information or protection.

For many participants, however, the decision was less a free choice than a reflection of constrained choices. Kerry identified the financial logic with clarity: ‘I just didn’t have any money for any lawyers … Any money that goes to them, doesn’t go to me, right? Like, it’s all got to come out of the same pot, and the pot wasn’t that big’. The perceived cost of legal advice was itself a product of the economic dependency that legal advice might have helped to address.

Tara was candid about the emotional calculus: ‘I just didn’t have the fight in me … I wanted to get out, and move on, and this was the easiest way’. Emotional exhaustion, the desire for closure and the prioritisation of relationship harmony over financial entitlement were consistent themes. Even where participants acknowledged that legal advice might have produced a more generous outcome, expediency prevailed.

The result is a situation in which ‘autonomy’ – the founding premise of the policy case for private ordering – functions in practice as something closer to its opposite. Where one party lacks financial resources, legal knowledge and the confidence to assert claims against a former partner, the decision not to seek advice may reflect structural constraint rather than free choice. Private ordering under such conditions does not express autonomy, it substitutes for it, and risks legitimising substantive inequality under the guise of consensual agreement.

Implications for financial remedies practice

The findings set out in this article have a number of direct implications for practitioners and judges working in financial remedies.

Consensual does not mean fair

The most fundamental lesson from this research is that an agreement reached without acrimony may nonetheless rest on fundamental legal misunderstandings, significant power imbalances and incomplete financial disclosure. Practitioners advising a client who has already reached an informal agreement should probe, as a matter of course, the basis on which that agreement was reached: Was there pension disclosure?; Was the division of assets driven by a 50:50 norm?; Did the primary earner take the lead in structuring the settlement? The presence of these features does not invalidate an agreement, but it should prompt careful scrutiny.

Pensions must be a baseline, not an afterthought.

The persistent exclusion of pensions from informal negotiations is perhaps the most consequential finding of this research. For practitioners engaged in even limited advisory roles, raising pension entitlement and the availability of pension sharing orders should be treated as a non-negotiable first step. The long-term consequences of pension omission are irreversible in a way that may other settlement ‘errors’ are not.

Scrutiny of consent orders

This research also raises questions about the level of scrutiny applied to consent orders produced without legal representation. The current approach, characterised by minimal judicial intervention in circumstances where the parties have reached an agreement, may inadvertently legitimise outcomes founded on myth rather than principle. As Eekelaar has observed, ‘law is the only safeguard individuals have against the exercise of power’ within intimate relationships.[[18]] The judicial function in approving consent orders is not merely administrative, it is a substantive protection for those whose negotiating position has been shaped by structural inequality rather than informed choice. Greater proactive engagement with the adequacy of consent orders, particularly in cases involving children, pensions assets or an obvious power imbalance, may be warranted.

The Law Commission’s scoping project

The Law Commission’s scoping project identified the need for clearer statutory principles and improved guidance for those reaching settlements without legal advice.[[19]] The findings reported here provide empirical support for that concern. The myths described – ‘50:50 is fair’, ‘his money, he decides’ and ‘what’s mine is mine’ – are not fringe misunderstandings held by a small minority. They are culturally embedded, widely shared narratives that systematically disadvantage the financially weaker party. Any reform agenda that does not address the operation of private ordering in practice risks leaving its most significant problem unresolved.

Conclusion

Private ordering now dominates the resolution of financial arrangements following divorce in England and Wales. What this research demonstrates is that, in the absence of legal advice, the legal framework governing financial remedies is routinely displaced by cultural myths that tell a different, and less protective, story about fairness, ownership and entitlement.

The myths of ‘50:50 is fair’, ‘his money, he decides’ and ‘what’s mine is mine’ are familiar enough; practitioners hear versions of these regularly from clients who have already tried to sort things out themselves. What is less familiar is the recognition that these myths function not merely as misunderstandings to be corrected, but as decision-making frameworks that structure negotiations from the outset, in the absence of the legal guidance that might have displaced them.

The consequences fall disproportionately on those who are already economically vulnerable: the primary carer who accepts 50:50 without understanding that her needs might justify more; the woman who does not know that she can claim a share of her ex-husband’s pension; the woman who defers to her former husband’s financial authority because that is how it worked during the marriage and because she does not want to make things difficult.

These are not edge cases. They are the everyday reality in the gap between the number of divorces and the number of financial remedy applications. If financial remedies law is to fulfil its redistributive and protective purpose, greater attention must be paid to how legal principles are understood (and misunderstood) beyond the courtroom. Early access to independent legal advice, renewed judicial scrutiny of consent orders reached without representation and continued engagement with the Law Commission’s reform agenda are each part of that picture. Fairness in financial remedies cannot remain a concept that operates only for those who know to ask for it.

Author’s note: an extended and more detailed version of the research and analysis presented in this article was published as, ‘“Fair to us”: The use of legal myths in privately negotiated financial settlements in England and Wales’, (2025) 39(1) International Journal of Law, Policy and the Family 1–17.

[[1]]: Family Court Statistics Quarterly: October to December 2025 (26 March 2026), www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2025/family-court-statistics-quarterly-october-to-december-2025#financial-remedy, accessed 22 April 2026.

[[2]]: E Hitchings and others, ‘Fair Shares? Sorting out money and property on divorce’ (Nuffield Foundation 2023).

[[3]]: A Barlow and others, Mapping Paths to Family Justice: Resolving Family Disputes in Neoliberal Times (Palgrave 2017).

[[4]]: V Braun and V Clarke, ‘Using thematic analysis in psychology’, (2006) 3 Qualitative Research in Psychology 77.

[[5]]: H Gray, ‘The power of love: how love obscures domestic labour and shuts down space for critique of militarism in the autobiographical accounts of British military wives’, (2022) Critical Military Studies 1.

[[6]]: D Harrison and L Laliberte, ‘How combat ideology structures military wives’ domestic labour’, (1993) 42 Studies in Political Economy 45.

[[7]]: J J Hisnanick and R D Little, ‘Honey I love you, but … investigating the causes of the earnings penalty of being a tied-migrant military spouse’, (2014) 41 Armed Forces & Society 413.

[[8]]: Hitchings and others (n 2).

[[9]]: S Cretney, ‘Private ordering and divorce – How far can we go?’, (2003) 33 Family Law 399.

[[10]]: J Wallbank, ‘Universal norms, individualisation and the need for recognition’, in J Wallbank and J Herring (eds), Vulnerabilities, Care and Family Law (Routledge, 2014); E Hitchings, J Miles and H Woodward, Assembling the Jigsaw Puzzle: Understanding Financial Settlement on Divorce (University of Bristol, 2013).

[[11]]: J Ginn and L Foster, ‘The gender gap in pensions: how policies continue to fail women’, (2023) 11 Journal of the British Academy 223; A Barlow and S Duncan, ‘New Labour’s communitarianism, supporting families and the “rationality mistake”: Part II’, (2010) 22 Journal of Social Welfare and Family Law 129.

[[12]]: T Wilkinson-Ryan and D Small, ‘Negotiating divorce: gender and the behavioural economics of divorce bargaining’, (2008) 26 Law and Inequality: A Journal of Theory and Practice 109.

[[13]]: E Hitchings, ‘The impact of recent ancillary relief: jurisprudence in the “everyday” ancillary relief case’, (2010) 22 Child and Family Law Quarterly 93; G Douglas, ‘Sharing financial loss as well as gains on divorce’, (2018) 32 Australian Journal of Family Law 108.

[[14]]: E Hitchings, C Bryson and G Douglas, ‘The financial realities of getting divorced in England and Wales’, in RC Akhtar (ed), Divorce Voices in Family Law (Bristol University Press, 2026).

[[15]]: L Coelho, ‘My money, your money, our money: contributions to the study of couples’ financial management in Portugal’, (2014) 6 RCCS Annual Review 83; E Gordon-Bouvier, ‘Crossing the boundaries of the home: a chronotopical analysis of the legal status of women’s domestic work’, (2019) 15 International Journal of Law in Context 479.

[[16]]: A Vlachantoni, ‘Older women and comparative pension inequalities in the UK and US’, in S Westwood and N J Knauer (eds), Research Handbook on Law, Society and Ageing (Edward Elgar, 2024).

[[17]]: Hitchings and others (n 2).

[[18]]: J Eekelaar, ‘Self-restraint: social norms, individualism and the family’, (2012) 13 Theoretical Inquiries in Law 75 at 83.

[[19]]: https://lawcom.gov.uk/publication/financial-remedies-scoping-report-and-summary