As with many legal questions, the answer to this question depends on the facts of each case.
As a starting point, the court works on the basis that marriage is a common endeavour i.e. you are in it together and that it is only fair for the fruits of a marriage to be shared between the parties. This also known as the ‘sharing principle’.
The court is of the belief that non-matrimonial property, on the other hand, should be excluded from the division of assets. This was re-emphasised in the recent case of Standish v Standish [2024], in which the court stated that ‘the time has come to make clear that non-matrimonial property should not be subject to the sharing principle’.
However, there are some important exceptions to this statement. Most significantly, this only applies if the parties have enough to meet each other’s income and capital needs. A point to be returned to further below.
What Might be Classed as Matrimonial or Non Matrimonial?
Types of possibly non-matrimonial assets are:
- Property brought into the marriage, also known as pre-acquired assets;
- A gift from an external source; or
- Inheritance received by one of the parties.
In determining whether an asset is matrimonial or not, the focus will be on the source of the assets, rather than the legal title.
An asset can become matrimonial during the course of a marriage. The court have indicated that it determining whether an asset has become matrimonial, they will consider how the parties have been dealing with the asset and whether this shows that, over time, they have been treating the asset as shared between them. The asset needs to have been treated as shared for a long enough period that the status of it has been settled.
The court in the recent of case of Standish v Standish [2024] emphasised the importance in looking at the treatment of the asset. This case involved a husband who transferred a large portion of his pre-acquired assets to his wife for the purpose of tax planning. The court confirmed that the transfer of capital assets with the intention of saving tax do not, without further compelling evidence, establish that the parties are treating the capital asset as shared between them.
Non-matrimonial assets within a long marriage are more likely to have merged or entangled with matrimonial property meaning it can be considered matrimonial or it might certainly be hard in those cases to work out where the non-matrimonial aspects ends and the matrimonial aspects begin. However, again this is not a rule and will be highly specific to the asset and its treatment. If there has been merging of non-matrimonial and matrimonial assets then a nuanced approach will need to be taken. The court has said that the fact that an asset has been mingled does not mean it needs to be divided equally.
The court has said that they would find it difficult to determine that a family home has not been matrimonialised, as it is the centre of family life.
When Does Matrimonial v Non Matrimonial Apply?
The approach to non-matrimonial property only applies to a specific strand of cases. In cases where the court is required to address the parties’ needs, those needs have priority. The majority of cases involve dividing one household into two and in doing so, the parties will struggle to meet their needs from the assets available. The definition of what meets the needs of a party will depend on the circumstances of the case.
Key Considerations
Understanding whether an asset is matrimonial or non matrimonial in nature is important to ensure that the asset is treated as it should be from the outset. Too many cases can turn on issues as such this which, left in dispute, can derail constructive discussions about the division of assets and resolution of matters to the cost of both parties.
We Can Help
The distinction between matrimonial and non-matrimonial property can be complex. It is therefore important when dealing with non-matrimonial property that you seek specialist legal advice to discuss how that asset or money might be treated by the court.
Understanding the assets on either parties’ side and whether they are matrimonial or non matrimonial requires careful consideration of the parties’ financial affairs, their conduct and treatment of assets during the marriage, how the asset came to being i.e. the source. Such issues require curious scrutiny, experience, and a clear understanding of family law. Our specialist team can provide practical guidance and legal support to help you understand these issues and the role they hold in your financial arrangements and ultimately negotiations.
If you are concerned about whether an asset is non matrimonial or are concerned about the claims that can be made by your spouse, contact us to discuss your options.
