Advice Centre

When the assets of a marriage are divided when a couple divorce, it’s often assumed that they will automatically be split evenly between both parties. 

In reality, it’s possible that one person will leave the marriage with a greater share of property, savings, investments and pensions than the other, depending on the past, current and future financial circumstances of the couple who were, as they move forward with their separate lives.

Understanding complex divorce law can be difficult, so it’s important to seek good representation from a specialist solicitor who can help you navigate through this difficult time.

What are matrimonial assets?

The simplest matrimonial assets definition is ‘a financial asset that you and / or your spouse acquired during the course of your marriage.’ 

Upon application to the court by one of the spouses to obtain a divorce, these assets are subject to being divided between the parties.

Matrimonial assets typically include things like the family home, pensions, investments and savings. 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.

Matrimonial assets are sometimes referred to as assets matrimonial, matrimonial property, family assets or community property.

What are non-matrimonial assets?

Matrimonial assets are different to non-matrimonial assets, which are financial assets acquired either before or after you got married. These usually include things like inheritance, family businesses and property purchased as a single person.

Who decides how matrimonial assets are divided when a couple divorces?

When you separate and, ultimately, divorce, you and your ex-wife or husband must come to an agreement about how your finances are divided – with the hope that you each feel you have received a fair and reasonable share of the assets acquired during your marriage.

If it’s impossible for a settlement to be reached amicably between the couple themselves, a court will ultimately make these decisions on their behalf, and on behalf of any children they have.

The court ultimately has the power to order a lump sum payment to one party, or to set up periodical payments (sometimes known as ‘spousal maintenance’) so that one party receives regular financial support from the other, over a set period of time – most often the case if one parent retains custody of the children form the relationship.

The court has a duty to ensure that both parties become financially independent of each other as quickly as possible. Each party is also under obligation to maximise their income and not simply rely on the other if they can be self-reliant (either partially or fully.)

There are certain circumstances, however, when one of the parties is unable to work because they are the primary caregiver for young children, for example, or because they are suffering from chronic ill health or disability. If they do not have an earning capacity, this will also affect other financial matters such as their ability to rent property, take out a loan or raise a mortgage.

In these instances, the court will determine how much support should be provided by the ex-husband or wife, and for how long.

What does UK law say about matrimonial assets when a couple divorces?

Under UK law, it doesn’t really matter who paid for matrimonial assets or accumulated the wealth. In England and Wales, any financial assets you acquire during the course of a marriage also legally belong to your spouse (for example, if you pay into a pension while you are married, your husband or wife will be entitled to a share of this, even if they did not physically make a contribution or if you inherit money from a deceased relative, your spouse will be entitled to some of this.)

As already noted, matrimonial assets are not necessarily split down the middle. The law in England and Wales states that each partner should receive a fair settlement from the divorce that takes into account their financial situations and, as much as possible, meets their financial needs.

In the event of a divorce, your ex-partner must be adequately provided for – so if this means giving up a share of your pension pot, the court will make this ruling.

What do the courts consider when deciding how matrimonial assets should be divided?

The court will look at a number of different factors when deciding how matrimonial assets should be split between both parties.

These include:

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.

What does UK law say about non-matrimonial assets when a couple divorce?

Sharing out non-matrimonial assets can be more complex than dividing matrimonial assets.

It’s possible to ask the court to exclude non-matrimonial assets from your divorce settlement, though this request may be denied if the non-matrimonial asset was somehow used in your marriage (for example, personal inheritance that funded the purchase of a family home.)

If the matrimonial assets in your case do not provide for your ex husband or wife sufficiently, or meet the financial needs of your children, the court may rule that non-matrimonial assets be included to top up the provision.

Will a prenuptial agreement protect all of my matrimonial assets?

Prenuptial agreements play an important part in divorce proceedings and will be duly considered by the courts, regardless of the jurisdiction in which they were entered into.

If you’re considering making a prenuptial agreement, it’s vital that this is carefully drafted by an experienced specialist family law solicitor and who is familiar with UK law in respect to the steps that need to be taken.

Irrespective of a prenuptial agreement, however, the court’s first preoccupation will be to ensure that the financial needs of the family and spouse are met, moving forward.

Is my pension considered to be a matrimonial asset?

We are often approached by one half of a divorcing couple, worried that their pension pot will be diminished during divorce proceedings.

If you paid into a pension during your marriage, this will be considered as a matrimonial asset and your ex husband or wife may be entitled to some (or potentially all) of it through a ‘pension sharing order.’ This is because pensions are often seen by the courts as joint savings for retirement, and are included within the savings and investments part of the matrimonial assets.

A pension sharing order states how much of your pension pot your spouse will receive, or how much of theirs you will receive. The amount is shown as a percentage of the transfer value.

When making this decision, the court will examine the financial needs of each spouse and base the allocation on each part receiving a fair and reasonable share.

What will happen to the family home when we divorce?

Many people assume that the matrimonial home (the primary residence of the couple and any children during the course of their marriage) will automatically be sold with the proceeds shared equally between both parties in the event of a divorce.

Even if the family home is in joint names, however, the court may not decide to share it equally if the purchase of the property is deemed to have been funded by ‘non-matrimonial’ assets.

The court will examine each case individually, taking into account what is best for both parties and any children.

What are ‘high-value matrimonial assets’

High value assets, acquired during the course of a marriage, include:

• Businesses or shares in a business.
• Fine art, antiques and classic or performance cars.
• Property investments like rental properties, holiday lets, land or second homes.
• High level remuneration packages with Long Term Incentive Plans and shares-based incentive schemes.

If a divorce settlement includes high-value assets, this can pose extra challenges for a couple who must reach a fair settlement that compensates each party, according to their financial circumstances and needs.

Sadly, it’s not uncommon for one partner to fail to declare or attempt to hide or dispose of high-value assets so that these are not included in the financial settlement. This is a practice known as ‘concealing assets’ which is prosecutable by law.

Anyone found guilty of concealing assets may come out of the settlement with a poorer outcome than they might previously have hoped for, with the other party receiving a higher share of remaining assets along with compensation. They may also be liable to pay costs.

If it’s suspected that either party is attempting to conceal assets, the court can issue an injunction preventing disposal of assets and freezing all related bank accounts.

Will I have to pay spousal periodical payments (maintenance) after we divorce?

There is a common law duty imposed upon spouses to support each other whilst the marriage or civil partnership exists, but what many people aren’t aware of is that this duty continues after separation as a result of statute.

Spousal periodical payments (or maintenance) consist of a range of orders that the court may make to adjust the parties resources and achieve a fair outcome on divorce. In essence, the court must decide whether  the spouse with the higher income must provide the other party with a lump sum payment and / or regular, ongoing financial support.

Spousal maintenance is an issue that’s unique to each divorcing couple, with each case being assessed separately by the courts. Spousal periodical payments usually come to an end after a set period of time, or if the recipient remarries or dies.

Divorce proceedings, including the division of matrimonial assets, can be complex, confusing and upsetting for all involved…

For further information, please contact Iwona Durlak in the family law team on 0330 107 0107 or email i.durlak@imd.co.uk. 

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