Divorce and Asset Division: What Counts as Matrimonial and Non-Matrimonial?

In May the family law world saw the judgment in the matter of Standish v Standish [2024] EWCA Civ 567 which was a case involving the application of a well-established principle (Sharing) in the matrimonial finance world. The sharing principle is a cornerstone principle which directs that all the assets which have been obtained during the marriage and through matrimonial endeavour, should be shared equally. This is usually the starting position for most cases. However, what does “obtained” during the marriage actually mean? Is being the legal owner of a property enough? If one of the parties purchases a property during the marriage, does this make the property a matrimonial property? 

The above case provided helpful guidance as to what should be considered when the courts are attempting to determine whether an asset is matrimonial or not, and therefore what each party is entitled to, and how to divide assets during divorce proceedings.  At the heart of the dispute in Standish was the classification of property for the purpose of the sharing principle, in particular, how and when property could change or move from being non-matrimonial property (to which the sharing principle does not apply) and becoming matrimonial property (to which the sharing principle applies).

Some of the properties in this case were registered in the parties’ joint names and others in a party’s sole name (albeit purchased during the marriage) however the source of the funds came from one of the parties to the marriage.  The wife argued that the title should be the critical factor i.e. the properties which were in joint names should be matrimonial, while the husband argued it should be the source of the funds. After a substantial review of the case law, the judge’s determination was that the critical factor in determining whether a property is matrimonial or non-matrimonial was the “source” of the wealth.

The case also considered a concept which is only truly seek in financial proceedings known as “matrimonialisation” which features regularly in most cases. This is the concept that even though an asset might be “non-matrimonial” at the outset, it can become a matrimonial asset over time.  The constant struggle on this point is to find a balance between flexibility (as each case is different) and certainty (individuals should know where they stand which would avoid uncertainty and litigation). In an attempt to strike a balance, the judge suggested that the following criteria should be borne in mind when considering whether an asset has been matrimonialised;

(a) The percentage of the parties’ assets (or of an asset), which were, or which might be said to comprise or reflect the product of non-marital endeavour, is not sufficiently significant to justify an evidential investigation and/or another than equal division of the wealth;

(b) The extent to which and the manner in which non-matrimonial property has been mixed with matrimonial property mean that, in fairness, it should be included within the sharing principle; and

(c) Non-marital property has been used in the purchase of the former matrimonial home, an asset which typically stands in a category of its own.

When and how a property (or assets) become matrimonalised remains ultimately a subjective assessment taking into consideration the above criteria. It requires a careful consideration of all the facts of a matter which cannot be overlooked.

At AmicusLaw, we have specialist legal advisors dealing with matrimonial financial affairs. If you require assistance, please do not hesitate to contact us to receive tailored advice to your specific situation. We’re on your side!

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