As a family practitioner the most common misconception that I hear from people I advise is ‘my pension is safe from my divorce’.
Then ensues horror upon learning that a pension is an asset that may be divided between you and your spouse. Understanding the distinction between matrimonial and non-matrimonial assets is important both for individuals thinking of marriage and those considering divorce. The way in which assets are divided on divorce will depend on whether they are a matrimonial asset or not.
Generally matrimonial assets includes property, investment, savings, possessions, antiques, and chattels acquired during the marriage. ‘Marriage’ refers to the period of time from marriage to separation and includes pre-marital cohabitation and engagement. Common examples of matrimonial assets are the family home, homes abroad or holiday homes, marital savings, and family businesses. It is easy to identify these assets as marital assets due to the fact that they would have been acquired for the benefit of the couple, and most likely during the marriage.
More and more people are becoming self-employed and running their own businesses. The question of whether a business can be considered a matrimonial asset will be determined by whether this was a sole venture and effort of one party, or a joint venture for the benefit of the couple. So what if you use family savings toward setting up a business, even if the business is only to be run by one party? This blurs the lines of what was previously a clear matrimonial asset, and is now a sole business venture.
Such action is viewed as ‘mingling’ of funds and can lead to the business being considered a matrimonial asset. The opposite is also true. If one party sell their business, one that they had prior to the marriage, and uses these funds to purchase the family home which the couple utilise for the entirety of their marriage, they have again ‘mingled’ funds. The proceeds from the sale of their business are now ‘matrimonialised’ in the family home.
To return to pensions, how can this be viewed as a matrimonial asset? Income earned during marriage, whether it is spent on designer watches, put in a savings account, invested in crypto-currency or, sensibly put toward your pension funds, is a matrimonial investment. In the event of a divorce, the Court will try to achieve an equality of income and assets for the couple, assuming it is fair to do so. The pension pot of each party will be assessed, and if there is a disparity between the two, a Pension Sharing Order will be considered whereby a sum of one party’s pension will be transferred to the other party.
Non-matrimonial assets refer to assets acquired prior to the marriage, inheritance and gifts. Again, this is on the assumption that they are kept separate and mingling is kept to a minimum. Obtaining clarity on whether an asset is a marital asset is the most important step to take either before marriage, or at the point of divorce. This is to ensure that you can protect your asset by way of a prenuptial agreement if you are entering into a marriage, or understand what you are entitled to if you are considering a divorce. Our family team have extensive family law experience and will be able to provide you a precise assessment of your financial situation.
You can read more about matrimonial property here.
At Hubbard Pegman and Whitney LLP, we strive on our commitment to providing clear, concise and realistic support and advice. If you are in need of a family lawyer, get in touch with us today. Currently, we are offering a free initial telephone consultation with our family team for new enquiries. During this call, we will tell you what we can do next to get started. Call us now for a friendly chat on 020 8735 9770 or email our family law department at info@hpwsolicitors.co.uk
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