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It is clear from case law that the court will apply the ‘sharing principle’ as a starting point where there is sufficient capital to meet parties’ needs, to divide all marital assets equally, unless there is good reason to depart from equality.
Marital assets include all property built up during the relationship, irrespective of the proportions in which the parties contributed.
The matrimonial home will almost certainly be considered a marital asset, regardless of parties’ contributions to that property. However, in cases where there are surplus assets than are required to meet the needs of the parties, consideration will be paid to whether any other assets are non-marital.
Assets that were acquired before the marriage could be considered non-marital and therefore excluded from the principle of equal sharing. The court can draw a distinction between wealth generated by one party before the marriage and assets accrued during the marriage, but only if there are sufficient assets in the case to meet both parties’ needs.
A spouse may also seek to argue that assets acquired entirely through their hard work should be considered ‘non-marital’ and not be subject to equal sharing. However, case law is clear that cases where parties will be successful in relying on an argument of ‘special contribution’ will be exceedingly rare. The court would have to be satisfied that a spouse had generated substantial wealth through exceptional success in business.
Inherited assets may be considered ‘non-marital’ but this is not guaranteed, especially in the case of a long marriage.
Other assets that may be considered non-marital include gifts or assets acquired after the date of separation.
The courts will deal with every case on a fact-specific basis and have ultimate discretion to make financial orders, taking into account fairness.
Couples may enter a prenuptial agreement before marriage, or a post-nuptial agreement during the marriage, if they wish to regulate how their assets should be divided in the event of a breakdown of the relationship. Although not currently strictly legally binding, if the nuptial agreement is properly drafted and the parties enter into full and frank financial disclosure, there is no reason a court will not follow the agreement, unless to do so would be unfair.
If you require advice regarding nuptial agreement, divorce, financial settlement or any other family law matter, you can contact one of our specialist family law solicitors on 0161 941 4000 or email us at firstname.lastname@example.org.