Divorce Myth 12 - When I divorce, I'll keep my assets and inheritance from before I was married.
- AuthorKaren Johnson
When dealing with finances on divorce, the court has a wide discretion in terms of the orders that can be made. Primarily, the court is looking to divide the matrimonial assets. Matrimonial assets are those that have been built up during the course of the relationship. This means that it can be very important to try to differentiate matrimonial assets from non-matrimonial assets.
Can my ex claim against my inheritance?
Inheritance received prior to the marriage, after separation, or even during the marriage may be considered to be non-matrimonial depending on what has been done with them. If they have always been treated separately to the family assets then there is likely to be very good argument to suggest that this money should be ring-fenced and not shared between you both. However, if the inheritance has been intermingled with family assets, such as spent on a family home or mixed with joint savings and used to supplement the family’s income, then it is more likely that the court will consider it as a matrimonial asset.
So, if I can show that an asset is non-matrimonial, my ex can’t have any?
If you are able to show that an asset is non-matrimonial this does not mean that it is safe. When considering what to order, the court must take into account all the circumstances of the case. The needs of any dependent child are paramount and the court must also consider both you and your ex-partner’s needs, incomes, earning capacities and resources, the length of the marriage, the standard of living, conduct and contributions. Even where an asset is considered non-matrimonial, it is still available to meet your needs. It may be the case that there are limited matrimonial assets available and a division of just those assets means that the child and your ex-partner are unable to meet their needs. If that is the case then a court may decide that this justifies using the non-matrimonial assets to meet that need.
If an asset is matrimonial, will my ex be entitled to half of my inheritance?
Whilst an equal division may be a starting point, the fact that the matrimonial assets have been bolstered by an inheritance may well justify a departure from equality to reflect that additional contribution you made. This is especially the case in a short relationship or where your ex-partner has yet to receive their inheritance (but see below).
I have not received an inheritance yet. Can my ex-spouse claim against my future inheritance?
Whilst inheritance prospects may have some place for consideration when looking at other assets inherited during the course of the marriage, they are not otherwise taken into account unless the person whose estate you are hoping to inherit is likely to pass away in the near future. Remember, you might not actually inherit anything, as they may decide to change their will!
That said, it is important to appreciate that the court’s ability to make orders in relation to finances arises when divorce proceedings are started, but does not automatically come to an end when the divorce is finalised (see myth 7). If you consider that there is a chance that you may receive a substantial inheritance in future and you are going through divorce, make sure that you get the financial claims resolved and set out in a court order.
Can my ex claim against assets I had before we were married?
As with inherited wealth, it is going to be very important to determine whether the assets are matrimonial or non-matrimonial. An asset which has been intermingled and is considered matrimonial may still justify grounds for departure from an equal division if it has been largely funded from pre-marital assets and it is a short marriage on the basis of contributions. An asset which has not been intermingled may be capable of being ring-fenced subject to needs.
With assets such as pensions, these are often built up over many years pre, during and post the relationship. In this situation there may be very good argument to ring-fence some or all of the pension as non-matrimonial depending on the circumstances.
What about assets built up whilst we were living together before we were married?
When looking at the length of the marriage and to identify the relevant timing to work out matrimonial and non-matrimonial assets, the court can take into account any period prior to the marriage where you were cohabiting as man and wife, where it is continuous and there was a seamless transition into married life.
I am getting married or I am already married. How can I protect my pre-acquired wealth and inheritance?
If you have assets or inheritance prospects that you wish to protect against possible claims in the event that your marriage breaks down, we would strongly recommend that you enter into either a pre-nuptial agreement if you are not yet married or a post-nuptial agreement in the event that you are already married.
Although, they are currently not legally binding, they are given significant weight by the court when they have been entered into properly.
So what is my next step?
Separation and divorce involves making decisions that can impact upon the rest of your and your children’s lives. Advice from an expert is essential. We offer a free 15 minute telephone call with one of our specialist divorce and separation lawyers to help identify what issues you face and how we might help.
If you would like to set up an initial conversation then please contact me. I am based at our Colchester office on 01206 217305 or alternatively you can email me at email@example.com