What distinguishes matrimonial vs non-matrimonial assets in divorce?

In financial remedy proceedings, assets are usually categorised as either matrimonial or non-matrimonial. As the starting point is the equal division of matrimonial assets, it is very common for parties to disagree on which assets are matrimonial. 

Matrimonial assets

Matrimonial assets are generally those which have been acquired or built up by either party during the marriage. Something to keep in mind here is that where a couple has seamlessly gone from cohabitation into marriage, the period of cohabitation is usually viewed by the court as contributing to the length of marriage. In other words, if you have only been married to your spouse for 2 years but cohabited seamlessly before for 10 years, the court will likely treat you as having been married for 12 years and will categorise your assets accordingly. 

Non-matrimonial assets

Non-matrimonial assets are typically those which are acquired before the marriage or acquired unilaterally, such as an inheritance. The presumption of equality does not apply to non-matrimonial assets, and therefore the party who brought them into the marriage may be able to retain them. However, these assets are still relevant when considering the overall balance of fairness and if one party has a real need, then the court could well award them a proportion of non-matrimonial assets to meet that need. The financial needs of the parties is one of the factors the court needs to consider under section 25 of the Matrimonial Causes Act 1973, which is the key piece of legislation for this area. In addition, if a party is retaining a non-matrimonial asset, the court will consider this a resource available to that party when considering a fair division of the matrimonial assets. 

Non-matrimonial assets may become “matrimonialised” where they have become ‘intermingled’ or mixed with marital assets. A very common example of this is the family home in a case where it was either pre-acquired by one party and used as the family home, or where the whole or majority of the deposit was paid for by one party using non-matrimonial capital. For this particular asset, there is a heightened presumption of an equal split, even if it is legally owned by only one party.  

Reviewing your assets

There is no set formula the family court must follow with regards to non-matrimonial assets, and therefore the approach will vary depending on the specific facts of each case. Where your relationship has broken down and you are looking to resolve your finances, it is useful to understand how your assets may be divided at the outset. Equally, if you are about to get married, it is important to consider entering into a pre-nuptial agreement that records what will happen to certain assets should the marriage break down. Though not yet legally binding, these are increasingly being upheld either wholly or partly by the family courts where pre-nuptial agreement meets the criteria set out following the leading case of Radmacher v Granatino (Radmacher) and subsequent case law. 

You can find out more about pre-nuptial agreements here.

How can we help?

At Hanne & Co, our team of family solicitors can help you in all aspects relating to your divorce and financial settlement, including advising you as to whether an asset might be considered non-matrimonial. We are also specialists in prenuptial and postnuptial agreements, and are able to assist in tailoring your agreement in line with your individual circumstances and wishes. 

Please do not hesitate to contact a member of our London–based family and divorce team on 020 7228 0017– our friendly team of experts would be happy to assist.