Non-Matrimonial Assets and How to Protect Them
When a couple divorce, it’s assumed that splitting their assets will be a swift and straight forward process, with each party taking a 50/50 share of any jointly owned property and funds.
In reality, matters are often more complex, and it’s possible that one person will leave the marriage with a greater share of any property, savings, investments, pensions and valuables than the other, dependent on the past, current and future financial circumstances of the couple along with the nature and value of their shared and personal assets.
Understanding divorce law and protecting the assets you feel most strongly about (whether a family inheritance or a business you started during the marriage) can be stressful and challenging. It’s vital, therefore, that you seek representation from a specialist family law solicitor in order to secure a favourable outcome for yourself and any children you have.
Are there different types of marital assets?
The law in England and Wales recognises that there are two types of assets to be taken into consideration during divorce proceedings: matrimonial assets and non-matrimonial assets.
During divorce or separation, it’s important to distinguish between these types, as it could make a difference to your Financial Settlement (the lump sum or regular payment you receive on finalising your divorce.)
Matrimonial assets are any financial assets that you and / or your spouse acquired during the course of your marriage (the time elapsed between the date of your wedding and your separation, rather than the full length of your relationship.)
Matrimonial assets include the family home along with any pension plans, investments, savings and jointly owned possessions like cars and furniture that you’ve acquired, as a couple. It doesn’t matter who put the money forward or who accumulated the wealth. The law in England and Wales states that any assets you gain, while married, also belong to your husband or wife (who is entitled to a share of them, should you divorce.)
Matrimonial assets can also include any property acquired before the date of the marriage if this was purchased for use as the family home, or any furniture that was bought specifically for this residence.
We also hear matrimonial assets referred to as ‘assets matrimonial,’ ‘matrimonial property,’ ‘family assets’ and ‘community property.’
Non-matrimonial assets are financial assets acquired before the date of your marriage (either as a single person or while cohabiting) or after you separate.
As well as pension plans, investments, savings and high-value possessions, non-matrimonial assets can include inheritance, family businesses and property purchased in your own name, rather than jointly with your spouse.
These assets must not have mingled during the course of your marriage – for instance, a property that you owned a single person being transferred to joint ownership after you became husband and wife.
We also hear non-matrimonial assets referred to as ‘non-marital property’ and ‘extra marital property.’
What happens to matrimonial assets when a couple divorce?
When a couple divorce, they need to reach a Financial Settlement that’s fair and reasonable for each party. As part of this process, there will naturally be some debate about how things are divided.
Matrimonial assets will, by their nature, be shared between spouses during divorce proceedings – no matter where the money came from or who earned it in order to fund them. This doesn’t mean that they will automatically be split equally, however. The court will make a decision to allocate funds based on the current and likely future financial situation of each party.
What happens to non-matrimonial assets when a couple divorce?
Non-matrimonial assets can be more complex to consider than matrimonial assets, which are automatically included in your Financial Settlement.
The first step in your divorce proceedings will usually be a full and frank financial disclosure that identifies your assets as a couple, both matrimonial and non-matrimonial.
The next step will be to consider whether your matrimonial (communal) assets, when shared, will meet each spouse’s financial needs and obligations on divorce. If not, it’s possible that some of your non-matrimonial assets will also be included in the Financial Settlement, so that both parties are taken care of, moving forward.
If one spouse is, for example, unable to re-house themselves adequately after the divorce using only the proceeds from dividing the matrimonial assets, a sum could be awarded to them from the non-matrimonial property, making it possible for them to secure an appropriate place to live.
It’s very unlikely that non-matrimonial assets would be shared equally between parties. Rather, the more financially vulnerable party would be awarded a portion of these, based on need.
What will the courts consider when deciding how matrimonial and non-matrimonial assets should be divided?
The court will look at a number of different factors when deciding how matrimonial and non-matrimonial assets should be split between both parties.
1) The income, earning capacity, properties, investments and savings that each of the parties has or is likely to have in the near future.
2) The financial needs, obligations and responsibilities each of the parties has or is likely to have in the near future
3) The standard of living the family was accustomed to, before the marriage broke down.
4) The duration of the marriage and age of each respondent.
5) Any physical or mental disability suffered by either party.
6) The contributions each of the parties made or is likely to make in the near future to the welfare of the family, including looking after the home or caring for children.
7) The conduct of each party, if this is deemed to affect the proceedings in any way.
The court will take a view on each of these factors and, in a balanced way, decide the fairest way to split the matrimonial assets, given the individual circumstances of those involved.
Can I have my non-matrimonial assets excluded from the Financial Settlement?
It’s possible to ask that non-matrimonial assets are excluded from your Financial Settlement, but the court may refuse this request if the asset was somehow used in your marriage – for example, if you funded the purchase of the family home with a personal inheritance.
Divorces are examined by the courts on a case by case basis, with the individual circumstances of both parties taken into account.
What will give me the best chance of protecting my non-matrimonial assets when I divorce?
The extent to which non-matrimonial assets can be used in a Financial Settlement is a difficult and often complex issue that requires careful consideration from the courts.
A skilled and experienced family law solicitor, from the team at IMD, can talk you through the intricacies involved in the division of both matrimonial and non-matrimonial assets and will protect your interests as you seek a fair settlement that represents what you put into the marriage – in terms of both time and money.
Can a prenuptial or postnuptial agreement protect non-matrimonial property?
A prenuptial agreement (drawn up before a marriage takes place) and a postnuptial agreement (entered into during the marriage) are both ways of potentially ring-fencing matrimonial assets in the event that a relationship breaks down.
Although this type of agreement is not strictly legally binding in England and Wales, the Supreme Court ruled, in 2010, that prenuptial agreements should be given appropriate weight by the courts provided the correct steps are taken and both parties in divorce proceedings seek independent specialist legal advice.
It’s therefore likely that a pre or postnuptial agreement will be seriously considered in court and should provide protection for either spouse who wishes to ring fence non-matrimonial assets like property, family inheritance or gifts given prior to the marriage.
Divorce proceedings, including the division of matrimonial assets, can be complex, confusing and upsetting for all involved…
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.