Matrimonial vs non-matrimonial property

When couples decide it’s time for them to divorce or dissolve a civil partnership, one of the most important (and often contentious) issues is how their assets will be divided.

A common starting point for this process is distinguishing between ‘matrimonial property’ (i.e. assets acquired during the span of their legally recognised relationship) and non-matrimonial property, which generally belongs to only one of the two parties.

This distinction is a crucial deciding factor in pinpointing who is entitled to what going forward, and can significantly affect the financial outcome of a separation.

Here, we explain what constitutes matrimonial property and what doesn’t – as well as highlight some key factors that anyone going through a separation should keep in mind.

What is matrimonial property?

In England and Wales, matrimonial property (also referred to as ‘marital assets’) typically includes assets acquired by either spouse during the course of the marriage or civil partnership.

Common examples of matrimonial property include:

• The family home – regardless of who bought it or whose name is on the deeds
• Savings accumulated during the marriage
• Pensions built up during the marriage
• Joint bank accounts
• Vehicles, investments or other assets purchased while married
• Business interests developed during the marriage

As a general rule, the starting point in financial proceedings is that matrimonial property should be divided equally – particularly following long marriages.

However, the court may depart from a 50/50 split to achieve fairness if deemed appropriate, for example when children are involved or in instances where one party has significant needs.

What isn’t considered matrimonial property?

Non-matrimonial property usually refers to assets that either party in the relationship acquired by themselves – either before the marriage or following the separation.

This can include:

• Inheritances received by one party – unless these funds have since been intermingled with joint assets
• Gifts given to one spouse exclusively
• Premarital assets – including property or investments owned before the marriage, unless subsequently placed in joint names
• Post-separation assets that have been acquired after the relationship had already irretrievably broken down

However, the distinction between matrimonial and non-matrimonial property is not always clear-cut – and as such, the court does have wide discretionary powers to decide ownership on a case-by-case basis.

For example:

• If non-matrimonial assets have been used to benefit the family (e.g. an inheritance was used to buy the family home), they may now be deemed part of the ‘matrimonial pot’
• The longer the marriage, the more likely non-matrimonial property will be considered shared in the eyes of the court
• If there are not enough matrimonial assets to meet the needs of both parties, particularly where children are involved, the court may elect to include non-matrimonial assets in the division arrangement

What you need to know

As highlighted above, how the court will delineate between the two types of property isn’t always clear from the outset. However, there are several guiding principles that will typically apply in each case:

Needs will always take priority

Even if an asset is classed as non-matrimonial, it may still be shared if the court decides it necessary to meet the other party’s long-term needs. This is especially true in cases where children are involved and one party is the primary carer.

How long you’ve been married does matter

In shorter marriages, courts are more likely to keep non-matrimonial property separate. On the other hand, assets are more likely to be treated as jointly owned if you’ve been with your spouse for a significant length of time.

Intermingling of assets brings added complexity

If a non-matrimonial asset becomes mixed with matrimonial property – for instance, by putting inherited funds into a joint account or using them to improve the family home – the distinction can become blurred.

Prenuptial and postnuptial agreements offer valuable guidance

While not legally binding, courts will often uphold prenuptial and postnuptial agreements if certain conditions are met – for instance, when both parties had independent legal advice and full financial disclosure prior to the signing. These agreements can help ringfence non-matrimonial property and prevent misunderstandings or disputes down the line.

Business assets

Businesses started before the marriage might be considered non-matrimonial, but if the business grew significantly during the marriage – or the income was relied on to support the family – some or all of its value may be treated as matrimonial upon divorce.

How we can help

The process of dividing assets is rarely straightforward and courts will look at the whole picture when making their calculations – including contributions (both financial and non-financial), needs, standard of living, age and future earning capacity.

There’s no rigid formula: each case is assessed on its individual merits.

For that reason, it’s crucial to seek advice from a specialist Family lawyer, as they will be able to advise on how best to protect your interests and reach a fair resolution in your unique circumstances – whether that be via negotiation, mediation or court proceedings.

If you’re considering separation or divorce and are unsure where you stand, get in touch with our experienced team today on 03333 058 375 or by email to family@psg-law.co.uk for personalised advice and clear, compassionate guidance. We’re here to help.