What is considered non-matrimonial property?
There are two types of assets which may be considered pre-matrimonial assets.
- Assets pre-acquired or brought into the marriage by one of the parties.
- Assets acquired by one of the parties during the marriage from an external source, for example by way of inheritance or a gift.
Other assets may also be classed as non-matrimonial property. For example, perhaps one spouse had a particular attachment to a foreign country and purchased property there. It was never used for family purposes and was always regarded as separate property. Provided there are no relationship-generated needs or disadvantages to be addressed, there will be a strong argument that the property remains separate from the financial settlement.
What do the Courts consider non-matrimonial property?
The leading case in classifying matrimonial and non-matrimonial property is White V White  1 A.C. 596. One of the key points laid down, in this case, is that financial and non-financial contributions (for example, caring for the family) should be given equal weight.
In White, Lord Nicholls distinguished between:
- Property that one party brought into the marriage, or inherited during the marriage, which he termed inherited property.
- Property acquired by the labours or endeavours of one or both parties during the marriage, which he termed matrimonial property.
Lord Nicholls stated the Court must consider the nature and value of the property and when and how it was acquired. He also made clear that if one party’s financial needs could not be met without recourse to inherited property, then the fact it was considered separate would carry little weight.
The case of Millar and McFarlane  2 A.C. 618 further developed the law around matrimonial and non-matrimonial property. In awarding the wife a lump-sum of £16.5 million, as opposed to the £125 million she claimed, Justice Bennet summed up the law as thus:
“In a case where the vast bulk of the husband’s enormous fortune was made not only before their marriage but also indeed before the wife and husband even met; where the “marital acquest” (if such there has been) is of a very small amount compared to the total assets; where the compensation principle is not in any way engaged; where the marriage is short and where the standard of living lasted only so long as the marriage; where the wife is now and will be very comfortably housed; and where [the child’s] needs are fully assured, surely fairness requires that the wife’s needs (generously interpreted) are the dominant factor in the section 25 exercise. Any other radically different way of looking at this case would, in my judgment, be manifestly unfair.”
It is crucial to note that every case will turn on its facts. Just because the marriage is of short duration or property was acquired prior to the wedding does not automatically mean certain assets will be deemed non-matrimonial property. Therefore, it is imperative to seek quality legal advice if you wish to keep certain assets away from the divorce financial settlement.
By instructing Rakhi and her team, you can be confident of receiving practical, smart, clear advice which will allow you to make the best decisions for you and your children.