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:
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.
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
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.
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