It is natural to think that the inheritance you received is
yours alone, or that the shares in the business you owned before
you married will always be ring-fenced just for you. But if your
marriage was to fail, it may come as a surprise that the Court
could have a different view.
Everyone knows legal disputes can be expensive. One of the most
common (and therefore potentially costly) sticking points between
divorcing parties is how such assets are to be dealt with. In the
context of divorce proceedings the Court will draw a distinction
between assets which a couple worked together to accumulate
(matrimonial property) and assets which, for example, one party has
brought into the marriage, or has acquired by way of inheritance or
gift during the marriage (non-matrimonial property).
In the majority of divorce cases, when it comes to the division
of family property the focus is upon providing for the needs of the
parties for accommodation and income. If the matrimonial assets are
insufficient to meet those needs, the Court will look to any
non-matrimonial property to make up the deficit. In short, needs
trump any other considerations. But if the parties' needs can
be met from matrimonial property there is a stronger argument for
excluding assets (such as an inheritance) from the overall asset
pot to be divided. In these cases, the Court will consider the type
of property involved, its origins, and how that property was dealt
with during the parties' marriage.
Non-matrimonial property may therefore be wholly or partly
excluded from the division of the assets on divorce because it
represents a contribution made by one party which is unmatched by
an equivalent contribution by the other. This is particularly so in
the case of a short marriage, where fairness may dictate that one
party should not be entitled to a share of their spouse's
pre-marital or post separation industry or windfall. But as the
years pass the parties are more likely to intermingle
non-matrimonial with matrimonial assets (i.e. by using the proceeds
of an inheritance to pay off the mortgage on the family home). It
then becomes easier to argue that the contributor of the
non-matrimonial property in effect agrees to share it with their
spouse, and harder (though not impossible) to argue that it should
There is no magic formula to apply to the division of finances
on divorce. How the Court will deal with non-matrimonial property
differs greatly depending on the facts of each case. If such an
asset is kept in a bank account in one parties' name without
being used to supplement the family expenses, it may assist in
supporting the argument that it has maintained its
"non-matrimonial" status. Alternatively, a pre-nuptial
agreement may be a useful mechanism to evidence the parties'
intention that certain property be ring-fenced from the division of
the parties' assets on divorce, and ultimately limit both
parties' legal costs should their marriage fail.
There is no guarantee that non-matrimonial property can be saved
from scrutiny and dissection in the event of divorce proceedings
but to increase one's chances of keeping hold of (for instance)
a cherished inheritance, it may be prudent to keep it separate from
the family finances.
Article first published in Gallery - Family Law Special Edition,
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
My friend was married to a Muslim man and they had a daughter together before he divorced her. He recently passed away, leaving another daughter from his first wife, whom he divorced before marrying my friend.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).