MATRIMONIAL AND NON-MATRIMONIAL PROPERTY
October 17, 2019 2:51 pm
The origin of the distinction between matrimonial and non-matrimonial property is a farming case heard in the House of Lords almost twenty years ago. Lord Nicholls identified a distinction between property that one party brought into the marriage, or inherited during the marriage (inherited property) and property acquired by the labours or endeavours of one or both parties during the marriage (matrimonial property). The most common types of non-matrimonial property are: inherited, pre-acquired property and post-separation assets. Nevertheless, there can be no question of non-matrimonial property being quarantined, ring-fenced or excluded from the matrimonial court’s discretionary consideration when dealing with an application for financial orders in its search for fairness in each case.
Inherited property: since inherited wealth forms part of the property and financial resources which a party to a marriage or civil partnership has, it must be taken into account under matrimonial legislation. However, the fact that wealth is inherited and not earned justifies it being treated differently from other property. What will be relevant is the length of the marriage/civil partnership and the duration the wealth has been enjoyed by the parties is also relevant.
Pre-acquired assets: the treatment of pre-marital wealth is highly fact specific and discretionary. A court is likely to include consideration of a spouses’ non-matrimonial property if the sharing of only the matrimonial property will not meet a claimant’s needs. The courts have emphasised that a flexible approach is required to ensure the focus of the Judge remains on achieving a fair result. Where pre-acquired wealth is mixed with other marital funds, this normally signifies acceptance that the wealth will be shared with the other spouse.
Post-separation assets: an obvious source of this type of non-matrimonial property is a bonus paid to one party following the separation. This may be treated differently from matrimonial property because it represents an unmatched contribution by one of the parties. Generally, if it can be said that the property in question was acquired or created by one party’s personal industry and not by the use of an asset created during the marriage, it will qualify as non-matrimonial property.
John Simpson is a collaborative family lawyer and a Resolution Accredited Specialist in Children Law and Complex Financial Remedies; he can advise on all aspects of separation, divorce, finances and children’s issues. He is contactable on 01473 230033 or by e-mail: firstname.lastname@example.org