Not all assets are treated equally in a divorce. One of the most important distinctions in financial remedy proceedings is between matrimonial and non-matrimonial assets. Understanding this distinction, and how the family court applies it: can make a significant difference to what you are entitled to keep or receive.
Matrimonial assets are those acquired during the marriage, whether jointly or by either party individually. They are considered the product of the joint endeavour of the marriage and are generally available for division between the parties on divorce.
Common examples of matrimonial assets include:
Non-matrimonial assets are those that one party brought to the marriage, inherited during the marriage, or received as a personal gift. They are not considered the product of the joint marital endeavour and may, in certain circumstances, be treated differently in a financial settlement.
Common examples of non-matrimonial assets include:
The distinction between matrimonial and non-matrimonial assets is important, but it is not absolute. The family court has a wide discretion in financial remedy cases and its overriding objective is to achieve a fair outcome for both parties.
The general principle is this: where a couple's matrimonial assets are sufficient to meet both parties' reasonable needs, non-matrimonial assets may be protected, or "ring-fenced", and excluded from the division. However, where matrimonial assets alone are insufficient to meet the needs of one or both parties, the court may look to non-matrimonial assets to bridge that gap.
Needs always come first. If one party's needs, particularly housing needs and income needs: cannot be met from the matrimonial assets alone, the court will generally look to non-matrimonial assets to meet those needs, regardless of their origin.
Pre-marital assets are one of the most frequently argued issues in financial remedy proceedings. The court's approach depends heavily on the length of the marriage and the extent to which the pre-marital asset has become mixed with matrimonial finances.
In a long marriage, pre-marital assets are more likely to have become intermingled with the matrimonial finances: used for the family home, invested jointly, or drawn upon for family needs, and the court may treat them as matrimonial. The longer the marriage, the less weight the court tends to give to the pre-marital origin of an asset.
In a short marriage, the court is more likely to return the parties to the financial positions they were in before the marriage, making pre-marital assets more likely to be protected.
Inheritances are generally treated as non-matrimonial assets, regardless of when they are received: before or during the marriage. However, the same principles apply: if the matrimonial assets are insufficient to meet needs, the court may look to inherited wealth to fill the gap. An inheritance that has been invested into the family home or used for the family's benefit over many years is also more likely to be treated as having become matrimonial in character.
The party seeking to protect non-matrimonial assets must actively argue the point. This requires:
A barrister with financial remedy experience can advise you on whether you have a strong argument for ring-fencing non-matrimonial assets and how to present that argument effectively to the court or at the FDR.
Matrimonial assets: those acquired during the marriage, who are generally available for division on divorce. Non-matrimonial assets such as pre-marital wealth, inheritances, and personal gifts may be protected where the matrimonial assets are sufficient to meet both parties' needs. However, the court's overriding concern is fairness and needs always take priority: if needs cannot be met from matrimonial assets alone, the court may look to non-matrimonial assets. The length of the marriage is a significant factor. Specialist advice is important if you are seeking to protect significant non-matrimonial assets.
If you're looking for advice or representation for your divorce case, contact our team today.