May 29, 2019 Latest News 0 comment

Can your property be kept out of the matrimonial pot?

Broadly speaking all assets in a marriage fall part of the matrimonial assets pot except for non-matrimonial property.
Generally non-matrimonial property is:
• Acquired by one party before the marriage.
• Acquired by one party by gift.
• Inherited by one party.

Non matrimonial property is unlikely to be shared between the parties on the breakdown of the marriage or civil partnership unless it is required to meet needs.

Inherited wealth is in a different category to other matrimonial assets –
• Where it still exists, the recipient should be allowed to keep it and the other has a weaker claim to it

• It is one of the circumstances of the case and should be regarded as part of the recipient party’s contribution to the marriage

• It is not something that is quarantined

• If the other party’s needs cannot be met without recourse to it the fact that it is inherited will carry little weight

• How the Court takes into account an inherited asset will depend upon the nature and value of the property, how and when it was acquired (see P v P (Inherited Property))

• Whether an inherited asset that had been kept separate and apart during the marriage should be taken into account is a matter of some controversy. It is submitted that such an asset ought to be taken into account but that the Court will then be primarily concerned with ensuring that the other party’s reasonable needs are met rather than in attempting overall equality of distribution of matrimonial and inherited assets

• The Court should, it is submitted, give a more generous interpretation to “reasonable needs” the larger the overall asset base (including inheritances) is.

• If the inheritance is prospective whether it can be regarded as a resource that is likely to be available in the foreseeable future will depend upon how certain it is that a party to the marriage is going to inherit and how soon that inheritance will become available.

• With prospective inheritances that fall within Section 25(2)(a) of the 1973 Act the Court can either make an adjustment by way of increased lump sum to the other party to take account of this if there are assets available or, if justice requires it, it can exercise its discretionary jurisdiction to order an adjournment.

At Mackenzie & Co, we offer a 30 minute free consultation where we can advise you as to the options available to you. Call us today – 0208 5696289.