Non-matrimonial assets in divorce

What Are Non-Matrimonial Assets in Divorce?

In UK divorce proceedings, the distinction between matrimonial and non-matrimonial assets plays a crucial role in financial settlements. Non-matrimonial assets are typically those acquired outside the marriage, such as:

• Property owned before the marriage
• Inheritance received by one party
• Gifts given to one spouse
• Assets acquired after separation

These assets are not automatically excluded from division, but courts generally treat them differently from matrimonial assets.

Can Non-Matrimonial Assets Be Shared in Divorce?

The court’s primary aim is to achieve a fair outcome. The fact that an asset was acquired from a source outside the marriage does not automatically exclude it from the court’s overarching goal of achieving a fair outcome for both parties. If matrimonial assets are insufficient to meet both parties’ needs, the court may consider “invading” non-matrimonial assets.

Key case law:

As per Hart v Hart [2017] EWCA Civ 1306, there is no specific one-size-fits-all approach to non-matrimonial assets. Generally though, non-matrimonial assets will not be subject to the principle of equal sharing. Except for those limited circumstances where access to non-matrimonial assets is necessary to meet the parties’ needs, the invasion of non-matrimonial assets “would be as rare as a white leopard” (Mostyn J, JL v SL (No 2) (Appeal: Non-Matrimonial Property) [2015] EWHC 360 (Fam)). 

What Is Matrimonialisation?

Matrimonialisation refers to the process by which a non-matrimonial asset becomes matrimonial due to how it is used during the marriage. For example:

• Using inherited funds to buy the family home
• Mixing personal savings with joint accounts
• Transferring sole-owned property into joint names

Once an asset is matrimonialised, it may be subject to division. How the assets have been held and made use of by the parties is therefore extremely important and relevant for the court to consider when exercising its discretion upon division. 

How Do Courts Decide?

Courts consider several factors:

• Source of the asset
• How it was used during the marriage
• Whether it was kept separate or mingled
• The financial needs of both parties

There is no rigid formula. Each case is assessed individually, with fairness and need as guiding principles.

Need Expert Advice?

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