Most assets built up during a relationship or marriage are included into the overall matrimonial pot for distribution on divorce. But how is a property treated if your ex moved into the house you owned before marrying? Do they get half if you divorce? This guide looks at the law surrounding these issues.
Most assets built up during a relationship or marriage are included into the overall matrimonial pot for distribution on divorce. But how is a property treated if your ex moved into the house you owned before marrying? Do they get half if you divorce? This guide looks at the law surrounding these issues.
If you have a family law issue and you require legal advice to understand your options, contact specialist family law solicitor Joanne Major. Joanne is the founder of her specialist family law firm and has spent her 25-year legal career specialising in family and matrimonial cases.
There are two kinds of assets, namely that which are acquired before the marriage and those accumulated during it. The court treats these assets differently depending on whether they are matrimonial or non-matrimonial assets. The treatment of pre-marital property can be complicated, and in most cases, subject to the vagaries of the court and section 25 of the Matrimonial Causes At 1973 (MCA).
Will a house owned before marriage be considered a matrimonial asset?
Inherited assets, property, and any other assets owned by one party before a marriage can be treated as distinct from joint finances during divorce. Therefore, they may not necessarily be included as part of the matrimonial pot available for distribution, and might be retained by the owing party.
But whether or not the court will decide to exclude such property depends on several case specific facts, including:
- Passage of time – in a long marriage, where either party owned property before getting married, it may gradually come to be seen as forming part of the matrimonial pot, even if it is not used as the family home. Especially if the asset in question is not kept separate
- Mingling of property – if a property was purchased before marriage, it can become merged with matrimonial property over the passage of time. For example, if it is used as a family holiday home or income generated from the asset is used within the marriage. The more assets are mingled, and the greater the erosion of time, the more likely it is that the pre-marital property will be included for the purposes of calculating a divorce settlement.
What happens to property I owned before getting married when I divorce?
If property owned before the marriage is deemed marital property, then it will be considered part of the matrimonial pot. It will then be divided between the couple according to case specific circumstances. The general starting point is 50:50, but the court will also take into account section 25 of the Matrimonial Causes Act 1973, which sets out several factors when deciding how assets should be split. These include:
- The welfare of any children under the age of 18
- The income, earning capacity, property, and any other relevant financial resources that each of the parties has or is likely to have in the foreseeable future
- The financial needs, obligations, and responsibilities that each of the parties has or is likely to have in the foreseeable future
- The standard of living enjoyed by the parties before the relationship broke down
- The age of each party and the duration of the marriage
After the court has balanced these competing factors, it will determine the percentage split of the available resources. If both parties reasonable needs cannot be satisfied by the assets contained within the matrimonial pot, the court may look towards any property owned before marriage to ensure an equitable split is achieved.
What does the court consider as a fair and equitable split?
A central issue, and bone of contention during divorce, is whether it is fair that assets acquired during a marriage should be split equally without reference to the individual responsible for acquiring them. Is it fair that the person who didn’t earn or receive the assets gets a share of them in the divorce settlement?
The court will look at meeting the needs of both parties, including making sure their housing and income requirements are met. If these can be satisfied from the assets available in the matrimonial pot, and there is surplus, the court may then look towards the origin of certain assets when deciding how the remainder is divided. This will include assets acquired before the marriage, such as any property owned by one party. If there have been unequal contributions because of a pre-marriage asset, this may be taken into account in deciding whether there should be a departure from the starting point of equality. This is rare, however, as it is more commonplace that there are simply insufficient assets to meet both parties needs in the first place.
Can my ex claim any rights to a property I owned before marrying?
Regardless of whether the property was purchased before marrying, your ex will have “matrimonial home rights” in any shared home. Even if this comprises property owned by one party before marrying. This means that both parties have a right to live in the property until the divorce has been finalised and a financial settlement agreed.
How do I protect any property I own before getting married?
Any property you own before getting married can be protected if you draw up a prenuptial agreement. Although they are not legally binding, a prenup can reduce the possibility of specified property being included within the overall matrimonial pot. If you have missed the boat and are already married, it is possible to enter into a postnuptial agreement. This is essentially the same as a prenup, but is drawn up after the marriage has taken place.
Even if one party owned the property before getting married, as we have stated, it can still be treated as a matrimonial asset if the other party can show their financial needs cannot be met without receiving funds from its sale. That said, property owned by one party that has been lived in by both parties during the marriage isn’t always divided equally, and will be split according to the section 25 MCA factors as set out above. Because each case is unique and decided on its own facts, there are no hard and fast rules when it comes to predicting how much each party will receive, or indeed, whether it will be considered as part of the matrimonial asset pot at all. This should be taken into account when considering the merits of entering into either a prenup or post nup agreement.
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