Non-matrimonial property – is it yours to keep?

Year Published: 2007

How do you feel about property that you acquired prior to marriage? Are you prepared to share this upon separation or do you believe it is yours forever?

This is a question which you should give careful consideration to as it could have a huge impact on your future. There is a common misconception that property acquired prior to marriage is ring-fenced and therefore not considered upon divorce but this is not the case under English Law at the present time.

The Law Commission, however, is now considering whether the current way of determining financial provision on separation can be improved. At the moment there is a great deal of uncertainty in a number of areas, one being ‘non-matrimonial property’. Although there is no strict definition of this, the term is commonly used in financial proceedings and refers to property acquired prior to the marriage, brought into the marriage by one party.

Many people are turning to pre-nuptial agreements to try and protect their pre-acquired wealth. However at present, although these agreements can be taken into consideration, they are not legally binding. There is therefore no certainty as to how non-matrimonial assets will be divided on separation.

The issue is further complicated if during the marriage one party inherits property. What do you believe should happen to this property? Should it be ring-fenced or divided between the parties equally? There is much case law on the issue but no definitive answer that could provide the clarity that so many desire.

The courts have a duty to provide for the needs of the parties and their children on separation. In some cases non-matrimonial property is taken into account as it is the only or main asset of the marriage. However, the party bringing the asset into the marriage often feels aggrieved and perceives they are being ‘punished’ for being the wealthier party.

The consultation is gathering as much information and as many views as possible in order to try and determine the following:

  1. the definition of non-matrimonial property;
  2. whether there should be a rule that it is not shared;
  3. whether that rule should be subject to the further rule that it must be shared if it is required to meet needs; and
  4. whether non-matrimonial property can ever become matrimonial, either by the passage of time or because it has been sold and replaced or has appreciated in value as a result of investment or management by either party.

The consultation is trying to establish a way that all parties can have a clearer picture of the financial outcomes upon divorce so they can enter into the marriage being fully aware of the situation. The present situation is certainly seen as unsatisfactory for most lay people as it is difficult to comprehend that their future is decided by a discretionary process solely dependent on the Judge determining the issue on the day.

For further information on family law matters, please contact Shelley Chesworth in the Private Client team on 0161 475 7682.

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