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
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
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.
These include:
The income, earning capacity, properties, investments and savings that each of the parties has or is likely to have in the near future.
The financial needs, obligations and responsibilities each of the parties has or is likely to have in the near future
The standard of living the family was accustomed to, before the marriage broke down.
The duration of the marriage and age of each respondent.
Any physical or mental disability suffered by either party.
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.
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.
F v F - Acted for a German husband in a complex financial remedy matter. He decided to instruct IMD Solicitors after he had lost trust in his previously instructed solicitors and feared that he would not achieve a favourable outcome from the proceedings. The relevant assets were spread across the globe with some located in the UK (including a multi-million pound business), Gibraltar, Spain, Dubai, and Poland. The overall value of assets exceeded £24 million. The husband had been cut off from the matrimonial assets and excluded from control of the business that had been established by his family. The case involved the instruction of numerous experts, for business valuations, Capital Gains Tax reports, and opinions on the enforcement of orders in foreign jurisdictions, and dealing with several applications, including applications for orders to freeze assets, prevent the disposition of assets, for the joinder of parties, and to litigate conduct issues. The final result exceeded the client’s expectations.
L v L - We were instructed by a mother in a complex international children matter. She was required by orders of the UK courts to return the child to the UK from Poland. She had travelled with the child to Poland but, following unsuccessful application to extend her stay there in August 2017, she decided not to return to the UK because the child disclosed sexual abuse by a member of the paternal family and the father. In September 2018, the Polish court dismissed the father’s Hague Convention application for the child's return on the basis of Article 13(b), a decision which the father appealed. In March 2019, the father applied to the UK High Court for an order for the child’s return pursuant to the procedure set out in Article 11(6) – (8) of the Brussels IIA Regulation. Despite the father's unsuccessful Hague Convention application in Poland, the UK court ordered the return of the child. Article 11 does not allow the court of the returning country much discretion. After all of this, the mother instructed IMD Solicitors to apply to discharge the orders of the UK Court for the return of the child. Even in the face of the fact that most applications to discharge such return orders fail, we succeeded. We are currently awaiting a decision in the UK courts on a further application for the transfer of jurisdiction to the Polish courts where the mother resides with the child.
G v P - We represent a Spanish mother in respect of an urgent application for a Child Arrangements Order and Specific Issue Order in the UK seeking the relocation of the child to Spain. This was after the return of the child to the UK under Hague Convection proceedings which this mother lost in Spain.
She was asking for an order for the relocation of the child back to Spain and an urgent interim Child Arrangements Order to allow her to see the child pending the final outcome of the UK proceedings. IMD successfully argued that, regardless of the return of the child to the UK under the Hague Convention, the mother should be allowed unsupervised overnight contact with the child. We were delighted to be able to secure her contact with the child for Christmas and she said that it was the best Christmas gift she could have wished for. The outcome of the application for the relocation is pending.
S v V - We currently represent the father in Child Arrangements Order proceedings issued by the mother in relation to variation of a UK order made in the face of numerous other international proceedings. He is an Italian National who has been living in France for the last 20 years and the mother is a Lithuanian national. The child is now 11 years old and proceedings concerning the child have been ongoing in various jurisdictions for the majority of the child`s life. Contested divorce proceedings including child arrangements took place in Monaco. The French Court and authorities were also involved, and various proceedings had been ongoing between parties since 2013 in France and Monaco.
The parties’ divorce was pronounced in Monaco. Thereafter, in December 2020, the mother submitted an application to relocate to England with the child, and the relocation took place in June 2021. Upon relocation, the she lodged a child arrangement order application, seeking to register a judgment made in Monaco and to vary the same in respect of the contact arrangements between the father and the child. The father seeks for the child’s return to Monaco.
Due to the parties’ mutual allegations and the associated international elements, various authorities and courts that have been involved in the case, the local authority has become involved with the family and a guardian has been instructed to represent the child in the UK proceedings. At present, these proceedings in England are ongoing and the outcome of the professional reports regarding the family are awaited.
P v P - We have acted for the Respondent Husband in relation to the financial remedy proceedings in the UK. The parties had various assets in the UK and Romania consisting mainly of the portfolio of properties but conduct issues were raised by the Wife due to a business of the Husband over which she had lost control and her allegations of dissipation of assets. The value of assets excluding the business were in a region of £3 million.
K v K - We act in financial remedy proceedings for a wife who is a Polish national. The matter's complexity mainly comes from a dispute between the parties around land in Poland. Its value was initially in dispute but was then assessed by a joint expert to be in the region of half a million pounds. The total assets in this case are estimated to be worth over £1 million. The land in Poland is a subject to contract with a third party and is being leased as a photovoltaic (solar) farm. The division of the land to achieve an equal share of the assets is complicated due to the contract in place and plans for the future use of the land. Currently the parties are awaiting a final hearing but efforts are being made to reach a settlement with the aid of alternative dispute resolution and in order to save the parties money and avoid further delays.
R v O - We acted pro bono and worked together with a law firm in Poland to ensure that the Costa Rican Mother regains access to her child. The Mother's only child was abducted from the UK in 2014. The Mother was successful with the abduction case and the UK family courts ordered the return of the child. The orders were recognised in Poland but unfortunately due to various issues with the Mother's immigration status and court's delays in Poland, the orders were never enforced. The Mother was facing removal from the UK and prospects of never seeing her child again. We have corresponded with various courts in Poland dealing with international abduction matters and we decided that an application for contact should be issued rather than any proceedings for further enforcement of the orders, as the Mother had not seen the child for around 7 years. At the same we secured the Mother's stay in the UK making successful outside of immigration rules application to extend her stay. We now receive regular photos from the Mother with her daughter, as face to face contact is taking place. We helped to secure an order of the Polish courts for the Mother to see the child regularly in person, whilst when she instructed us she was facing a prospect of never seeing her child again and being deported to Costa Rica.
We use cookies to ensure that we give you the best experience on our website.
By clicking "Accept", you'll be letting us use cookies to improve your website experience.Accept
Talk to us today 
CONTACT US TODAY
0330 107 0107