Home > The Legal Process > Marital and Non-marital Assets

Marital and Non-marital Assets

By: Lorna Elliott LLB (hons), Barrister - Updated: 23 Sep 2017 |
 
Marriage Divorce Assets Non-marital

Nobody says ‘I do’ thinking that their marriage won't last. However, it is a sad fact that a large number of marriages do fail, with current figures somewhere between 30 and 40 per cent.

When couples decide to divorce, there can often be bitter wrangling over the financial and proprietary aspects of the marriage.

Generally, if one person has control over the finances during the marriage, the other party will be at a considerable disadvantage when it comes to the divorce proceedings.

Every marriage concerns an element of interdependence but when a couple divorces there is a need to divide assets, money and other property. However, these are broadly divided into two categories, ‘marital’ and ‘non-marital’ assets.

What Are Marital and Non-Marital Assets?

If you have assets that you owned before the marriage, such as money or property that you have inherited, payouts from personal injury awards or other legal settlements, or gifts that you receive during the marriage that were not intended as ‘family’ gifts, these are non-marital assets.

For example, you as an individual inherit a painting that you then sell at auction. If you deposit the proceeds into a joint bank account, or spend some or all of the money on your spouse or joint assets, this property then becomes marital property. There are ways to identify and track liquidated non-marital assets, but these procedures are seldom straightforward.

How to Protect Your Assets

In order to protect your non-marital assets from being counted as marital, always remember to keep them separate. If you are not yet married, consider talking to your future spouse about the assets that you both have and what you both intend to keep as your own. Although it’s not exactly romantic, it can help to avoid considerable emotional wrangling and bitterness in the future if the marriage fails.

Stay Credit Worthy

Keeping your own assets separate in a marriage is particularly important if you are at a financial disadvantage, e.g. if you are not working, are working but earn considerably less than your spouse, or if you are at home caring for children. Some spouses, usually wives, can rely solely on their husband’s means all their married lives and when it comes to divorce they can discover that they are barely credit worthy.

As a result it is vitally important that you retain a good credit rating, so that if you find yourself single again you are able to support yourself and obtain credit from lending institutions. The easiest way to do this is to have a credit card in your sole name. However, it is equally important to maintain your payments on this account, as a bad credit rating is as bad, if not worse, than having no credit history at all. Also, make sure that you are named on all the household accounts.

Keep a Record

Although it may seem cynical, it is also wise to make sure you keep yourself up to date as to the extent of your and your spouse’s assets from time to time. Make sure you have copies of proof of ownership, as in the event of a divorce these can go ‘missing.’

Finally, if you are on the brink of divorcing your spouse, make sure that you close any joint accounts immediately. The last thing you want is to be subsidising your spouse (and perhaps directly or indirectly their legal fees) after you have separated.

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Rara - Your Question:
Hi, we have been married 6 years. In December 2016 my husband bought a house in his name only when we were separated for 4 months. After buying the house, we reconciled and moved into together into the new home. We lived there for a year. in Feb 2017 I found out he was having an affair and I wanted to leave him, so I've left the property with my 8 week old baby. I'm now in Australia with my child for the past 7 months. Do I have a share of the property when we divorce? What happens if he sells it before the divorce?

Our Response:
You would have to seek legal advice. Much depends upon whether the child is your husband's child, whether the money he used to buy the house was money from your marriage and how much equity is in the property. If your husband sells the property, you may have a claim on any equity made or money put down as a deposit.
DivorceResource - 25-Sep-17 @ 2:08 PM
Hi, we have been married 6 years. In December 2016 my husband bought a house in his name only when we were separated for 4 months. After buying the house, we reconciled and moved into together into the new home. We lived there for a year. in Feb 2017 i found out he was having an affair and I wanted to leave him, so I've left the property with my 8 week old baby. I'm now in Australia with my child for the past 7 months. Do I have a share of the property when we divorce? What happens if he sells it before the divorce?
Rara - 23-Sep-17 @ 1:54 PM
Coco - Your Question:
My dad owned his home before he meet his wife, they have been married for 18years and have no children over this time he has paid every bill in the marriage even though she has alawys worked full time, he also remortgage his home to buy her a house in Africa. My dad is retired and now and would like to sell his home to free up some cash and downsize his home. She is refusing and wants a divorce is she entitled to 50% even if she never paid a bill or mortgage. Thanks for your advice

Our Response:
If your dad has had a long marriage with his wife, then she would theoretically be entitled to a portion of his estate, regardless of what she has financially contributed. If your dad wishes to oppose this and attempt to clarify his property as a non-marital asset, then he would have to seek legal advice about taking the matter to court. However, the longer they have been married, the more of a financial claim she will have.
DivorceResource - 11-Sep-17 @ 3:04 PM
My dad owned his home before he meet his wife, they have been married for 18years and have no children over this time he has paid every bill in the marriage even though she has alawys worked full time, he also remortgage his home to buy her a house in Africa. My dad is retired and now and would like to sell his home to free up some cash and downsize his home. She is refusing and wants a divorce is she entitled to 50% even if she never paid a bill or mortgage. Thanks for your advice
Coco - 9-Sep-17 @ 9:38 AM
Hi, I had bought a property before marriage. I have been married for 12 years but ever since the property was purchased I have been paying full mortgage and all utility bills. She hardly worked for few months but no contribution towards the property expenses whatsoever. We had planned to move out to our country for the sake of children's better education couple of years ago. I even extended my help to bring her father to settle in UK before I left, providing free accommodation and free food. The cunning bastard brought my family back to UK without my knowledge after my resignation was given at a highly paid job. She broke into the flat when I was at work. Due to this, there broke out a domestic incident 16 months ago whereby I was taken away from the property and restraining order placed on me. Later I realised it was a plot to remove me from there so that she could bring her father in to enjoy rent free accommodation. Since then, mortgage could not be continued as I am jobless. The bank has taken me to court the first time after 8 months of arrears, but the (estranged) wife appeared in court to submit her marital rights on the property registered with Land Registry. The judge then gave her a chance to prove her financial affordability to bank to continue paying the mortgage and allowed her to stay there with kids (and possibly with her father too). Another 8 months gone, the court and bank has sent me notice of Warrant of Repossession with date and time next week. My question here is: Will the bank pay me the money in full in my account after deducting the outstanding balance including 20 months of arrears (although I haven't lived there) and all other charges after sale in auction or give to court for partitioning the amount?! What's the law in U.K. on properties bought before marriage and mortgage is in sole name and all mortgage paid solely by the Title bearer? Funny enough, she claims she has a baby from myself delivered sometime Nov last year, date unknown, name unknown....
TruthTriumphs - 2-Sep-17 @ 11:31 AM
I bought a property before I married my wife. We have been married for 15 years and are now divorcing. Does she have a claim on it. Thanks
Pete - 1-Sep-17 @ 5:00 PM
JB - Your Question:
Hi, I met my partner online in 2013. He arrived in the UK for the first time in June 2014 with a 6 month visa. As part of his UK visa requirements we entered into a civil partnership in August the same year, his visa was then extended for a further 2 years. I am 55 and self employed and my partner who works full time is 25. We are both in agreement that we should separate and dissolve our CP but he has the idea that he's automatically entitled to 50% of my assets. He bought nothing financially into the relationship. Since he has been legally able to work we have divided the household bills (gas, electricity, water council tax and food only) roughly down the middle, using separate bank accounts. Because of his lower income, relative to mine I have always paid for our holidays and travel etc. The house we live in was paid for outright before we met, I have savings of around 100K but no other income and no pension. We don't have any children between us but he does send money back to his family home abroad when they request it. My dilemma, if we separate now he will be in breach of his UK visa requirements when he applies for his ILR visa in two years time but if we stay together our CP moves much closer to being classed as a medium term relationship with possible worse consequences for me. So my question, how much could he be entitled to now and how much more if we remain together for another two years?

Our Response:
First of all, you and/or your partner must tell the Home Office when you divorce or separate if his visa is based upon your relationship, please see link here. Secondly, if your marriage has been short and he has not contributed financially to the CP, it is highly unlikely he would be awarded 50% of your assets. The assets you owned prior to your CP, will, in all likelihood remain yours. As you quite rightly say, the longer the CP, the larger the claim on your assets he will have.
DivorceResource - 29-Aug-17 @ 12:24 PM
Hi, I met my partner online in 2013. He arrived in the UK for the first time in June 2014 with a 6 month visa. As part of his UK visa requirements we entered into a civil partnership in August the same year, his visa was then extended for a further 2 years. I am 55 and self employed and my partner who works full time is 25. We are both in agreement that we should separate and dissolve our CP but he has the idea that he's automatically entitled to 50% of my assets. He bought nothing financially into the relationship. Since he has been legally able to work we have divided the household bills (gas, electricity, water council tax and food only) roughly down the middle, using separate bank accounts. Because of his lower income, relative to mine I have always paid for our holidays and travel etc. The house we live in was paid for outright before we met, I have savings of around 100K but no other income and no pension. We don't have any children between us but he does send money back to his family home abroad when they request it. My dilemma, if we separate now he will be in breach of his UK visa requirements when he applies for his ILR visa in two years time but if we stay together our CP moves much closer to being classed as a medium term relationship with possible worse consequences for me. So my question, how much could he be entitled to now and how much more if we remain together for another two years?
JB - 27-Aug-17 @ 2:13 PM
@Nbrian - your husband would willingly have to sign a post-nuptual agreement which is a written contract executed after a couple gets married. The agreement draws/divides up a married couple's financial affairs and assets in the event of a separation or divorce. Everything is considered jointly owned in marriage unless there are pre-marital assets one or each person can claim if the marriage has been short. As a rule, the longer the marriage the more the other spouse has a claim.
MikeB - 24-Aug-17 @ 1:56 PM
Hi I have been married for 3 years together for 12 years in total, I owned 35% share of my fathers house before we got together, we also brought a house with a morgage in both names but I paid £35,000 deposit plus £15,000 in renervations I also own all the furniture and all the bills come out of my account. My husband pays £450 per month to me to cover bills which are in joint names. I have two children only one is my husbands and I.My fathers house and estate will pass to me in entiratey in a few years, I wish to protect myself and my children's inheritance in the future.How can make sure that my originale deposit of £35,000 in our marriage home and my future inheritance from my father so that my children will be able to have my fathers house and deposit returned from the house we live in now that is mortgaged before settling any remaining mortgage and splitting any remaining equity?My husband has only paid the £450 p/mth and no large amounts towards the propertie he came into the relationship with nothing and has poor credit rating.I have no specific plans to seperate and we had instructed our originale house purchasing solicitor that my future husband at the time would be intitled to 1% of the house which he agree to before we married but I think that my solicitor at the time has not done this in the paperwork and won't return the file to me to varify this. How can I now protect myself in the future if the worst happens between us?
Nbrian - 22-Aug-17 @ 8:46 PM
I bought my property in December 2016 in my sole name at a time when we were planning to separate as my husband was withholding financial support towards the family (we have 3 children together) and things had got bitter. After family arbitration, he decided to stay in the house and pay towards the house if there was a tenancy agreement in his name. His brother drafted a tenancy agreement to shut him up which stated that he would live as a lodger and pay rent and service costs to me as the landlord. After 7 months, he left the property. It has been a bitter 7 months where the realtionship has not really been there. He did not pay towards the house purchase or any mortgage. Can he claim a share in the property as part of the divorce settlement?
Feeling Emotional - 22-Aug-17 @ 3:08 PM
Advice pls - Your Question:
I have been separated from my wife for 19 months and will divorce at the 2yr mark. My mum gifted me her house 3 months ago and currently lives with me. Can my ex wife claim against this house when we divorce?

Our Response:
It is highly unlikely your ex will have a claim on your mother's house as it would not be considered part of the joint marital pot as it was acquired post-separation.
DivorceResource - 21-Aug-17 @ 3:25 PM
I have been separated from my wife for 19 months and will divorce at the 2yr mark.My mum gifted me her house 3 months ago and currently lives with me. Can my ex wife claim against this house when we divorce?
Advice pls - 21-Aug-17 @ 1:56 AM
I have been been living with my Wife for 10 years, marrried for 7 in all that time i have paid every single bill whether it be rent or mortgage and bills.2 years ago my Wifes parents gifted us 180K which we purchased in both of our names.I paid the stamp duty then paid to absolutelty rennovate the whole property adding an additonal 100K to the worth of the property, we are seperating and whilst all im asking for is the 30K I put into the property and a share of any equity she is saying I can whistle for the lot and why should i be entitled to equity as her parents bought the house for her and why should I make any money from it, this is from someone that ive finaially supported for 10 years.What are my entitlements? only after whats fair.
Gunners - 12-Aug-17 @ 10:34 AM
i have been divorced for 4 years, my ex-wife and I live in the same house ever since, due to her illness - she has decided to do the house up and sell it (she has sent me a letter asking fro half of the monies, to fixe the house up for sale) I am self employed and I am unable to find this amount - can she demand money in this way - if the house is sold as seen, will I get half?
Munnmm - 10-Aug-17 @ 11:15 AM
Imarried my husband 6 years ago. He is from a non European country and he has been unable to gain a visa so is currently illegal. Can he claim against my property if i divorce him? I brought all my assets with me into the marriage he brought nothing. We have never even lived together and he has contributed nothing. I am not working and am partly disabled.
Lori - 9-Aug-17 @ 11:26 PM
jah - Your Question:
I married with my husband nearly 5years.now I want to divorce because he is adultery but he doesn't accep and don't want to divorce because He don't want to loose his assets. I am not English women but now I got British passport.He bought this house before we married and he borrowed money from financial I didn't know. he start run business in year 2012 before I married with him for 6 month. he give his sons 50% and everything be long to him. what I should to do?what I can get ?

Our Response:
As the marriage has been short-lived, then it is unlikely you would be entitled to half his estate. Unless you can agree between you, a divorce court will take into consideration what you both owned prior to marriage and what you have both brought to the marriage financially. If you have your own children between you this will also be taken into consideration. If your husband owned the house prior to marriage, it is likely he will still be able to keep this. However, you may wish to seek legal advice.
DivorceResource - 7-Aug-17 @ 3:15 PM
I married with my husband nearly 5years.now I want to divorce because he is adultery but he doesn't accep and don't want to divorce because He don't want to loose his assets. I am not English women but now I got British passport. He bought this house before we married and he borrowed money from financialI didn't know. he start run business in year 2012 before I married with him for 6 month. he give his sons 50% and everything be long to him. what I should to do? what I can get ?
jah - 6-Aug-17 @ 8:11 PM
regret123 - Your Question:
We were together 7 years, married for 2. Last month she told me that she was no longer in love with me and wanted a separation. she has now decided this to be permanent.I owned a large property in London and when we married we changed the deeds into both our names, and also put each other on the mortgage.Throughout the duration of our marriage she has contributed £300 a month to living expenses and mortgage costs, which if you live in central London with a large mortgage, you'll realize this doesn't go very far! Because there was so much equity built up in the property, I decided to purchase a second property, again, in both our names.As the first property was mine prior to the marriage I want to fight for it, but feel comfortable with my wife taking half of the second property.Obviously the best way to go about this is to get her to agree to another change in the title deeds and have her name removed, but if this isn't an option, what can I do?Is it cut and dry that she'll now be entitled to 50% of the property?Any help greatly appreciated.

Our Response:
If the marriage has been short and there was a good deal of equity in the property prior to your marriage, then the house you owned prior to marriage 'may' be considered a non-marital asset, if the matter has to go to court. However, much would also depend upon whether there were children in the marriage, as this would make a difference. If you can agree between you, or via mediation, this would be a better and much less costly option than if a court has to decide.
DivorceResource - 1-Aug-17 @ 2:55 PM
Security4321 - Your Question:
I had a mortgage prior being married. Everything is in my name, mortgage, bills etc. been in the property since 2012. She moved in during 2013 and has made small contributions. Together 5yrs, married & separated after 10 months. No real financial contribution since being married. She works full time as do I. I requested she move out, gave her 3 months after separating to sort herself out and find a place, provided a spare room & allowed her to stay payment free from point of separation. She now refuses to give back the key and comes and goes as she pleases. She also wants half the equity. Can she do this?

Our Response:
You can see more via the CAB link here which will answer your questions. You don't say whether you have children, as this would make a difference. If you have children, you may wish to seek legal advice.
DivorceResource - 1-Aug-17 @ 12:36 PM
We were together 7 years, married for 2. Last month she told me that she was no longer in love with me and wanted a separation. she has now decided this to be permanent. I owned a large property in London and when we married we changed the deeds into both our names, and also put each other on the mortgage. Throughout the duration of our marriage she has contributed £300 a month to living expenses and mortgage costs, which if you live in central London with a large mortgage, you'll realize this doesn't go very far! Because there was so much equity built up in the property, I decided to purchase a second property, again, in both our names. As the first property was mine prior to the marriage I want to fight for it, but feel comfortable with my wife taking half of the second property. Obviously the best way to go about this is to get her to agree to another change in the title deeds and have her name removed, but if this isn't an option, what can I do? Is it cut and dry that she'll now be entitled to 50% of the property? Any help greatly appreciated.
regret123 - 1-Aug-17 @ 9:21 AM
I had a mortgage prior being married.Everything is in my name, mortgage, bills etc. been in the property since 2012.She moved in during 2013 and has made small contributions.Together 5yrs, married & separated after 10 months.No real financial contribution since being married.She works full time as do I.I requested she move out, gave her 3 months after separating to sort herself out and find a place, provided a spare room & allowed her to stay payment free from point of separation.She now refuses to give back the key and comes and goes as she pleases.She also wants half the equity.Can she do this?
Security4321 - 31-Jul-17 @ 4:57 PM
Gardener - Your Question:
I am a senior but met someone on line, we have been dating for sometime and I am considering a proposal. I am concerned that in the event of it not working out I would lose half of my assets and property that I have built up over the years. Should I be worried?

Our Response:
Much will depend upon the length of the marriage and whether you have children. Both of these will impact upon your wife's claim to your estate. You could request a pre-nuptual agreement. However, dependent upon the circumstances a prenuptial agreement is not always legally binding, should your wife wish to challenge it. On the other hand, the court will need a good reason to not uphold one. Issues can occur if the agreement is in conflict with the needs of the individuals concerned (such as your wife and any children from the marriage). These needs will considered more important that the terms of the prenuptial agreement.
DivorceResource - 28-Jul-17 @ 11:20 AM
I am a senior but met someone on line, we have been dating for sometime and I am considering a proposal. I am concerned that in the event of it not working out I would lose half of my assets and property that I have built up over the years. Should I be worried?
Gardener - 26-Jul-17 @ 8:48 PM
Frankie - Your Question:
I have been married for 5 years. My husband wants a divorce. The family home I owned prior to marriage and husband did not contribute towards mortgage or upkeep etc. I have 2 year old and 15 week old. I earn more than my husband and he came to the marriage with nothing. Will I lose all my savings and house etc.

Our Response:
You will not lose all your savings and your house. If you cannot agree between your husband and yourself , then you would have to seek mediation, divorce arbitration or take the matter to court. As the marriage has been short, then the house is likely to be considered a non-marital asset and deemed yours. However, you may wish to seek legal advice regarding this matter in order to explore your options.
DivorceResource - 25-Jul-17 @ 2:02 PM
I have been married for 5 years. My husband wants a divorce. The family home I owned prior to marriage and husband did not contribute towards mortgage or upkeep etc. I have 2 year old and 15 week old. I earn more than my husband and he came to the marriage with nothing. Will I lose all my savings and house etc.
Frankie - 24-Jul-17 @ 9:52 PM
SN - Your Question:
I am currently divorcing my husband of almost 5 years. He is a drug addict and has repeatedly stolen and deceived me during our marriage. I own my house (with a mortgage) which I purchased after the sale of my previous property 12 years ago. He has never paid anything toward the mortgage and it is in my name only. He has paid half of the utility bills and shopping each month. We have no children together but I have a son of 17 from my previous relationship who lives with me. I have a well paid job, with a good pension. He has a low paid job since getting fired from his job a few months ago due to his issues. We are trying to do this amicably however I worry about him making a claim in the future. At the moment he is saying he accepts this is his own doing and is happy to walk away with his car and clothes. Is he entitled to make a claim against my house even though he has made no financial contribution to it? All repairs and furnishings etc have also been paid for solely by myself. Thanks

Our Response:
If the marriage is short and you owned your home prior to marriage, plus you put in the money, it is highly unlikely he would be able to make a claim.
DivorceResource - 13-Jul-17 @ 3:55 PM
I am currently divorcing my husband of almost 5 years. He is a drug addict and has repeatedly stolen and deceived me during our marriage. I own my house (with a mortgage) which I purchased after the sale of my previous property 12 years ago. He has never paid anything toward the mortgage and it is in my name only. He has paid half of the utility bills and shopping each month. We have no children together but I have a son of 17 from my previous relationship who lives with me. I have a well paid job, with a good pension. He has a low paid job since getting fired from his job a few months ago due to his issues. We are trying to do this amicably however I worry about him making a claim in the future. At the moment he is saying he accepts this is his own doing and is happy to walk away with his car and clothes. Is he entitled to make a claim against my house even though he has made no financial contribution to it? All repairs and furnishings etc have also been paid for solely by myself. Thanks
SN - 11-Jul-17 @ 10:42 PM
@Nikki - if you can prove the money came via you and was not syphoned or sidelined, then it shouldn't be taken into a consideration in a divorce. If you're genuinely giving him the money, I'd still register it in your name though, just because I'm cautious and you never know what might happen! Tim.
TFD77 - 11-Jul-17 @ 12:40 PM
Hi I am buying my partner a car soon and it will be registered on his name ( I am providing all funds). He and his wife are separated (nothIng legal) and I wondered if this would become classed as a marital asset and considered in a future divorce/ legal separation? Thanks for any advice
Nikki - 10-Jul-17 @ 10:03 PM
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