When people get divorced and resolve their finances, it can sometimes be assumed that ALL assets will be divided between the married couple but this is not always the case.
Many factors are considered when deciding how assets will be divided and one of the considerations is whether an asset is a matrimonial asset or not.
An asset can be classed as “matrimonial” or “non-matrimonial”, and which asset falls within which type is very much dependent on the circumstances and can make a significant difference to the outcome of financial settlements.
These are usually assets which have been acquired during the marriage or cohabitation period or which have been treated as joint assets regardless of which party owns them.
There is a strong case to share assets that are built up during the marriage. The starting point for sharing matrimonial assets is the sharing principle, although the matrimonial assets are not always shared equally, as it depends on all circumstances of the case including needs; financial resources and the welfare of any children which is the paramount consideration.
These can include any or all of the following:
Usually these are assets which were either acquired by one of the parties before the started cohabitation or were built up following separation.
This can include assets such as:
Non-matrimonial assets are less likely to be shared between the parties on the breakdown of the marriage unless they are required to meet the needs of a party or have been “matrimonialised”. However, this is not an automatic right, and each case is considered on its own facts and assessed on the basis of fairness.
This is when a non-matrimonial asset has been mingled or blended with a matrimonial asset during the marriage.
Examples of mingling
A property one party bought before marriage was sold and monies used to purchase the family home in which the parties lived, the non-matrimonial source of funds has now been mingled and likely to be seen as matrimonialised.
A second property (not the family home) that was used as a holiday home and enjoyed by the family; or which was rented out with the rent used to top-up the family income.
Needs trump all. This means if the matrimonial assets are not sufficient to meet the needs of both parties to the marriage, then non-matrimonial assets will be considered.
For non-matrimonial assets the length of the marriage is relevant. For a short marriage the spouse is less likely to be entitled to non-matrimonial asset owned by the other spouse. However, needs are still relevant.
In a long marriage, non-matrimonial property represents a contribution to the marriage by one of the parties and accordingly the significance of the origin of the contribution may well diminish as the years pass.
These are assets brought into the marriage or inherited during the marriage, and which have not been “matrimonialised”. A party may be able to keep an inherited asset unless the needs of the parties could not be met without recourse to this asset.
The fact that wealth is inherited or pre-acquired does not automatically lead to its exclusion altogether from the court’s consideration of a fair outcome to both parties. The duration of the marriage and the length of the time the wealth has been enjoyed by the parties is also relevant as is the extent to which there has been a drawing down on the inherited wealth.
How the asset has been used over the course of the marriage has potential to affect whether it remains separate. This is discretionary and very much dependent on the circumstances.
Having a pre-nuptial agreement entered into before marriage or post-nuptial agreement entered into after marriage can help to protect non-matrimonial assets. These agreements are not legally binding but can be given weight by the courts if certain conditions when entering into the agreement were met.
We recommend you obtain legal advice with an experienced family lawyer before entering into such agreement.
Here at Andrew Isaacs Law our expert lawyers can offer advice and guidance through a very difficult process. You can book a no obligation appointment for a fixed fee to receive tailored advice to you, consider your options and decide how you wish to move forward. Contact us to book an appointment today
Article dated: 19/03/2025
Nicola qualified as a solicitor in September 2013. Prior to specialising in family law, Nicola worked within legal costs where she gained extensive experience in drafting and negotiations, which are important skills in family law.
Nicola assists her clients in resolving family law issues, whilst at the same time providing compassionate and clear advice, to ensure her client’s best interests are met.
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