The starting point when considering the division of assets upon divorce is that these assets are to be shared between the parties. But what happens if you acquired wealth before the marriage, or during the marriage via inheritance, which you wish to keep separate?
The principle of non-matrimonial assets is established in English family law and sharing does not apply to these non-marital assets. Non-matrimonial assets are assets which have come from a source external to the marriage, for example they were owned prior to the relationship or have been received by way of gift or inheritance during the relationship. However, if non-marital assets are mingled or mixed with marital assets, they can become part of marital property and be subject to sharing. This process is known as ‘matrimonialisation’. A common example of this is where non-marital assets are used to purchase the family home which is typically treated as matrimonial property and shared upon divorce.
It is important to note that non-marital property can also be shared (even if it has been kept separate) to meet the other spouse’s reasonable needs. However, if financial resources accrued during the marriage are sufficient to meet both spouse’s needs then it is appropriate to ring-fence non-marital assets.
The recent cases of Standish v Standish [2024] and ST v AR [2025] have established that, even if non-marital assets have been mixed with marital assets, e.g. held jointly with your spouse or in your spouse’s name, or used for the benefit of the family, the Court will take account of the source of the asset as a critical factor and not just whose name the asset is in. Even if the assets have been mingled, the Court will consider whether it is fair for the assets to be shared. This means that even if these assets are shared, it does not necessarily mean that they must be shared equally.
There is now greater scope for argument that an asset brought into the marriage from a source external to the marriage is not automatically assumed to be shared upon divorce. This will require a factual consideration of the source of the asset, how it has been used, whether and to what extent it has been mixed with marital assets, or treated in such a way as to become marital property.
There is no guarantee as to the outcome, as the Court has a very wide discretion when determining a fair division of assets. The treatment of non-marital assets will vary depending on the specific circumstances of each case and there is no ‘one size fits all’ approach.
If you have pre-marital or inherited wealth which you wish to protect, or anticipate receiving an inheritance which you wish to keep separate from your marital assets, it is advisable to obtain specialist legal advice to consider your options. This can include entering into a nuptial agreement to ensure clarity in terms of how assets shall be treated in the event of a separation. Nuptial agreements can be entered into before the marriage by way of a pre-nuptial agreement, or during the marriage as a post-nuptial agreement.