Should property owned before the marriage be kept out of the divorce settlement?

If you have acquired assets completely independently of your spouse, for example assets owned by you prior to the marriage, then it may seem unfair to you that your spouse should share in those assets when it comes to divorce.

In such a case you should be aware of the principle of ‘matrimonial property’.

Essentially, the principle says that, subject to the exception we will mention in a moment, only ‘matrimonial property’ should go into the pot for division between yourself and your spouse on divorce.

So what is ‘matrimonial property’? The term refers to assets acquired during the marriage, through the joint efforts of the parties to the marriage. Accordingly, anything that was acquired by one of the parties before the marriage is not ‘matrimonial property’. (Similarly inheritances, gifts to one party and assets acquired after the separation are considered to be ‘non-matrimonial’).

The exception to the rule that only matrimonial property is divided between the parties is that where the matrimonial property is not sufficient to meet the financial needs of the parties then non-matrimonial property may be used to meet those needs.

The principle of matrimonial property arises quite frequently. A recent example demonstrates it being argued by a husband, in a Family Court case last October.

In the case the husband acquired an interest in a family business prior to the marriage. He therefore argued that the value of his interest in the business at the time of the marriage was not ‘matrimonial property’, and therefore should remain his property (the exception to the rule above did not apply, as the ‘matrimonial property’ in the case was more than sufficient to meet the parties’ needs).

The wife, however, claimed that the business had been ‘matrimonialised’ over the course of the marriage, and should therefore be divided equally, along with the other assets.

The judge agreed with the wife. A particular reason for this was that in 2016 the husband restructured the business, leaving him and the wife with equal shareholdings in part of the business, with the balance belonging to the children. This effectively meant that the husband acknowledged that his interest in the business was not worth more than the wife’s.

Accordingly, the judge ordered that the parties should share all property equally.

If you wish to argue that certain property is or is not ‘matrimonial’ you should seek the advice of an expert family lawyer. We can find you an expert lawyer that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.

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