In essence, non-matrimonial assets within a divorce can be described as those things you acquired before getting married, or after you separated. Although it can also include assets acquired during the marriage. This article sets out what assets might be defined as non-matrimonial and what you can do to prevent them being shared.
What things are considered non matrimonial assets?
It is not always straightforward to determine what assets should be considered non-matrimonial. Assets could include gifts, an inheritance or capital acquired via investments or earnings, but there is no standard definition.
Examples of non-matrimonial assets can include those:
- Inherited by one party during the marriage
- Received as a gift by one spouse to the other
- Already owned by one party before marrying
- Property acquired by one party and solely owned by them, which is not the family home
To qualify as a non-matrimonial asset, it must remain separate and distinct from matrimonial property. But ring-fencing these assets is not guaranteed. Family law is no one size fits all and works on a case by case basis for which the division starting point is 50:50. The court will only depart from this if one party has a greater need than the other or if one party can show they made a significant contribution to the matrimonial assets.
Can I stop my assets being included in the divorce?
If there are assets you believe should not be included in the divorce settlement, you can ask the court to potentially exclude it from the available assets. This could happen where:
- You received an inheritance, or are due to receive an inheritance after you separated from your spouse
- You owned property before you married, such as rental property, a share portfolio or other assets that were not merged into the matrimonial melting pot
- You held a high value pension before you were married
- You set up or owned a business before you married
Such a request is more likely to succeed if the matrimonial assets available adequately cover the needs of both of you for yourselves and any children, if you have been open and honest in your financial disclosure from the outset, or have been married for a relatively short time.
Could a pre-nuptial agreement protect my assets?
Pre-nuptial agreements are used increasingly as a way of addressing, in advance of the marriage, how assets are to be divided in the event of separation or divorce. Although they are not strictly legally binding (in certain circumstances they can be overturned by the court), they can be upheld, providing certain formalities are met and the provisions of the agreement are fair. It is also possible to enter into a post-nuptial agreement after marrying.
In most cases, pre-nuptial and post-nuptial agreements will be binding, provided they were entered into freely and not signed in unfair circumstances or under duress.
Placing non-matrimonial assets into a trust can also be an effective way to protect property. In a legal trust, a third party (trustee) is given formal control of specific assets on behalf of their owner, who is known as the beneficiary.
In summary, matrimonial assets will be shared and non-matrimonial assets will not be, however, the court has a wide discretion to do what they believe is fair, based on all the circumstances of the case. A key factor when making a decision is the extent to which the non-matrimonial property has been merged with other property and how this has been used during the marriage. Division of assets on divorce is a complex area of law; getting specialist advice early on can demystify the process and explain how your assets might be treated.
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