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How Non-Matrimonial Wealth Is Treated By The Courts

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Ellie Sharp - Trainee Solicitor

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Article reviewed by Nichola Bright.
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How Non Matrimonial Wealth Is Treated By The Courts

What are non-matrimonial assets?

You must disclose all your financial assets, income, and liabilities when divorcing.

Many people ask whether they need to disclose any assets acquired before the marriage or whether they can keep these separate; our Family lawyers explain how the courts treat non-matrimonial wealth.

In summary, non-matrimonial assets can include inheritance, gifts from external parties or a property purchased by one party before the marriage.

By contrast, marital assets can be quite far-reaching and include the family home and other real property, pensions, savings accounts, cars or other vehicles, furniture and household contents, stocks/bonds/investments or businesses.

A matrimonial asset that was purchased using non-matrimonial proceeds or wealth will likely be classed as matrimonial.

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Why is it important to distinguish between matrimonial and non-matrimonial wealth?

The financial assets in a divorce are determined based on the financial resources available to the parties.

The general position is that if surplus financial resources exist for needs, assets will be divided on a sharing basis, and the parties are more likely to retain non-matrimonial wealth.

However, one or both parties' needs exceed the available resources.

In that case, assets will likely be split on a needs basis, meaning that all financial resources must be considered to ensure that both parties are adequately provided for.

The "need" for a home is the most important factor, with the needs of any child being the first consideration of any court.

As such, where needs are required, the courts are more likely to consider non-matrimonial wealth.

This means that inheritance, gifts, or assets acquired prior to the marriage (even if kept separate throughout) may have to be factored into the overall settlement.  

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Why is it important to distinguish between matrimonial and non matrimonial wealth

How do the courts treat non-matrimonial wealth?

Although non-matrimonial wealth may be considered in needs cases, this is not an absolute certainty, and each case is decided on its facts.  

A famous case considered non-matrimonial wealth in the context of divorce proceedings: White v White [2000] UKHL 54.

In this case, the court had to determine whether the other party was entitled to a share of non-matrimonial wealth. 

As stated above, the court confirmed that parties should generally be allowed to keep their non-matrimonial property unless there are insufficient resources to provide for their needs.

If there are insufficient resources and the court does need to look towards using non-matrimonial wealth, then the court will take the approach as set out in Rossi v Rossi [2006] EWHC 1482 (Fam):

"The court will decide whether it [non-matrimonial property] should be shared and in what proportions. In so deciding it will have regard to the reality that the longer the marriage the more likely non-matrimonial property will become merged or entangled with matrimonial property. By contrast, in a short marriage case, non-matrimonial assets are not likely to be shared unless needs require this."

Consequently, how non-matrimonial wealth is dealt with is entirely fact-specific and depends on the circumstances of each case.

The use of non-matrimonial wealth depends on each party's amount, needs and resources, the length of the marriage, and the extent to which the parties kept their individual wealth distinct from the joint matrimonial resources during the marriage.

Read Our Family Law Guide To Divorce

How do the courts treat non matrimonial wealth

How to protect non-matrimonial wealth?

The best way to try and protect non-matrimonial wealth in the event of a divorce is to enter into a pre and/or postnuptial agreement.

Whilst pre/postnuptial agreements are not legally binding, provided that they meet certain criteria and are therefore classified as a "qualifying nuptial agreement", the court will attach much weight to the same when adjudicating a settlement dispute.

As such, pre/post-nuptial agreements are a good way of making express reference to any wealth acquired before the marriage and setting out how to protect such wealth.

Everything You Need To Know About Prenuptial Agreements

How to protect non matrimonial wealth

Guide to Wealth Protection & Marriage Breakdown

Contact Our Divorce Lawyers

If you would like advice on protecting non-matrimonial wealth, divorce, or financial settlements, contact our Family Law Team on:

01619414000

Ellie Sharp's profile picture

Ellie Sharp

Trainee Solicitor

Ellie joined Myerson as a Trainee Solicitor in September 2023 and is currently undertaking her third seat in the Probate litigation department.

Ellie obtained a 1st class Law degree from the University of Law in Chester in 2020, and then completed her LPC and LLM in 2021 at the same University, obtaining a Distinction in both.

She has previous experience carrying out residential property post-completion tasks, compliance and reporting at a law firm in Nantwich. She then moved to work as a paralegal in the in-house legal team at the Woodland Trust, working on a variety of matters and gaining experience in areas such as commercial law, intellectual property, property law and charity law.

During her studies, Ellie also volunteered at Citizens Advice as both an adviser and a fundraising volunteer.

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