Are assets brought into or inherited during the marriage treated differently if we divorce?

Marital property is that which is generated during the marriage. Non-marital property refers to property which has been brought into the marriage by one party. It can apply to all types of property, including business interests. For instance, one party might have inherited shares in a business or acquired the business before marriage.

When considering what might be a fair financial settlement, regard must be had to the property and other financial resources which either party to the marriage has or is likely to have in the foreseeable future. That will include non-marital property. It all must be considered as it forms a resource that one party has or will have access to. However, the source and nature of the wealth is relevant and it might mean that it is treated differently.

There are a number of relevant factors to be considered, the main one being that the “needs” of the parties are a priority. Examples of other factors are, the length of the marriage and the duration of time that the non-marital wealth that has been enjoyed by the parties.

What about if I have an interest in a Trust?

There are different trusts with differing arrangements. How that is relevant in the context of divorce needs to be fully considered.

Any beneficial interest under a trust is potentially a financial resource. Funds in a trust may originate outside the marriage so could be considered non-marital property, so again they might be treated differently to marital property.

What will happen will depend on the circumstances of each case so do call to let us know your situation so that we can give you advice and assistance.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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