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

Marital and Non-marital Assets

By: Lorna Elliott LLB (hons), Barrister - Updated: 26 Jul 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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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
Rustylee68 - Your Question:
I'm presently living with my partner of 12 years. We bought our current house together 9 years now , although the house is in my name as my partners credit is poor and he was going through a divorce at the time we bought it., So we thought it best to keep in my name.He pays me £450 a month towards the mortgage and utilities, ( this figure hasn't changed for the past 6 years!!! We have 2 young girls 10&6.Prior to moving to our current house, I bought my own house. My partner was living there with me before we moved to our current home.The house is in my name, I did not take money from him towards the mortgage for that property as I didn't want to complicate things. Instead he agreed to do some rennvations around my home instead, of which I paid for materials but he just did the labour.presently we are not getting on! I have suggested as we bought our current home together we sell this and go our separate ways.He has said no, he wants me to sell the house I bought previously ( which is currently rented) he said he's entitled to half of both properties!!! Despite the fact I've put more into both financially.Like I said his name is not on either of the properties, he's not even registered as living in our current property because his credit is so bad he decided not to for fear of bailiffs coming round.He has not agreed to carry on with mediation which we did start but he gave up after 1 session!!!!!In nutshell I want to know where he stands legally? Is he entitled to half of both my assets despite us not being married?!!!I would obviously be guardian to the children.Ps : I've told him I can't just hand one house over to him even if I wanted to as I assume first he needs a solicitor ( which he can't afford) plus he would have to apply to the same mortgage company as a new customer but his credit is so poor he wouldn't be able to get a mortgage anyway!!!

Our Response:
If you are the sole owner, you have a right to stay in the home. However, your partner may be able to claim a 'beneficial interest' in it. You can see more via the CAB article here which tells you all you need to know. Some professional legal advice will also help you to explore your options.
DivorceResource - 10-Jul-17 @ 10:26 AM
I'm presently living with my partner of 12 years. We bought our current house together9 years now , although the house is in my name as my partners credit is poor and he was going through a divorce at the time we bought it., So we thought it best to keep in my name. He pays me £450 a month towards the mortgage and utilities, ( this figure hasn't changed for the past 6 years!!! We have 2 young girls 10&6. Prior to moving to our current house, I bought my own house. My partner was living there with me before we moved to our current home. The house is in my name, I did not take money from him towards the mortgage for that property as I didn't want to complicate things. Instead he agreed to do some rennvations around my home instead, of which I paid for materials but he just did the labour. presently we are not getting on! I have suggested as we bought our current home together we sell this and go our separate ways. He has said no, he wants me to sell the house I bought previously ( which is currently rented) he said he's entitled to half of both properties!!! Despite the fact I've put more into both financially. Like I said his name is not on either of the properties, he's not even registered as living in our current property because his credit is so bad he decided not to for fear of bailiffs coming round. He has not agreed to carry on with mediation which we did start but he gave up after 1 session!!!!! In nutshell I want to know where he stands legally? Is he entitled to half of both my assets despite us not being married?!!! I would obviously be guardian to the children. Ps : I've told him I can't just hand one house over to him even if I wanted to as I assume first he needs a solicitor ( which he can't afford) plus he would have to apply to the same mortgage company as a new customer but his credit is so poor he wouldn't be able to get a mortgage anyway!!!
Rustylee68 - 9-Jul-17 @ 7:06 AM
Blue eyed girl - Your Question:
Hi, I have recently left my husband and need some advice about dividing our assets. We both own a house in our own names, when we met we both had mortgages still owing, £60k on his and £80k on mine. We were living in mine and renting his out. My parents died a couple of years ago and I paid off both mortgages from the sale of their house. My house is worth about £300,000 now and his is about £120,000. He is refusing to leave my house my house and says he is entitled to half of everything. That I have to sell mine and he will go back and live in his and he will let me keep half the value of his house from his share of selling mine. We have been married for four years. Will everything have to be split 50:50 even though I have put so much more in financially?

Our Response:
As you have had only a short marriage, then your own properties will be considered as pre-marital assets. The division of financial assets generally works upon the length of the marriage and whether there are children involved. As a rule, the shorter the marriage, the less the estate will be divided equally where one person owns more. You may be able to claim some of the money back that was yours via inheritance if you contributed substantially more than your spouse. However, you would have to seek legal advice regarding this.
DivorceResource - 3-Jul-17 @ 2:42 PM
Sami- Your Question:
Hi my brother got divorced 6 ad half year ago and married now wife. All our property was under his name but now he passed away. Can we get anything back from her because everything was under my father's name before he passed everything to him.

Our Response:
You would have to seek legal advice regarding this matter due to the complexities of the property ownership.
DivorceResource - 3-Jul-17 @ 10:28 AM
Hi my brother got divorced 6 ad half year ago and married now wife. All our property was under his name but now he passed away. Can we get anything back from her because everything was under my father's name before he passed everything to him.
Sami - 2-Jul-17 @ 9:15 AM
Hi, I have recently left my husband and need some advice about dividing our assets. We both own a house in our own names, when we met we both had mortgages still owing, £60k on his and £80k on mine. We were living in mine and renting his out. My parents died a couple of years ago and I paid off both mortgages from the sale of their house. My house is worth about £300,000 now and his is about £120,000. He is refusing to leave my house my house and says he is entitled to half of everything. That I have to sell mine and he will go back and live in his and he will let me keep half the value of his house from his share of selling mine. We have been married for four years. Will everything have to be split 50:50 even though I have put so much more in financially?
Blue eyed girl - 1-Jul-17 @ 6:06 AM
Welsh - Your Question:
Hi. Can you clarify. I left my wife 8 years ago and married my now wife 3 years later. When I left my first wife she had everything and I was made bankrupt in 2010, clear now thank god! I moved in I 2012 having a tough time finding work, so was on benefits while she worked. We moved to Wales where we both worked and she sold the house in Scotland in 2013. 2014 she bought This house from the proceeds and we've lived here for 3 years! I'm worried! She insists we can't have a joint account in fact we are not financially attached at all. All the utilities are in her name the only bill our joint names are on is the council tax. She's been ill for three years and receives benefits pip etc. I'm registered as her Carer but don't receive money as I'm self employed. We basically share the bills. Her only income are her benefits! We've not been getting on over the last year and she wants to move back to her family. I'm worried that she'll want to separate. Because the thought of moving back to the place of all my bad memories, bankruptcy, depression fills me with dread. She controls me regarding money as she buys what she wants for the house and I'm constantly made aware that this is her house. I've do loads of work in the garden round the house, care for her when she needs it. We have a good life, holidays etc even though we can't reallly afford it. I have a good credit rating but she as arrangements with her debters. I gave her £5000 to cover some of the debt when I cashed in a pension! My question is if it all goes pear shape and she asks me to leave, or I leave of my own volition and we separate what are my rights regarding assets and property. I feel I've put so much into this relationship, both emotional physical and financial. If we discuss money it ends up a row because everything is in her name. I have a van, tools and my personal effects. I believe she thinks the rest is hers. Please help?

Our Response:
I'm a little confused as to whose money was used in the purchase of the house you have with your current wife. If your current wife bought the house with her own money, then this may be considered a pre-marital asset which she essentially owns. If your marraige is a short one and you have not contributed financially to the marital pot, then it is likely the house will remain hers. However, if you have contributed financially you would be able to take the matter to mediation, divorce arbitration or court and apply for a share. That share will depend upon the length of the marriage, your financial contribution and whether you have children between you. Therefore, without knowing whose money went into the property in the first place it is difficult to answer your question. You could try approaching Citizens Advice for some further guidance.
DivorceResource - 30-Jun-17 @ 11:14 AM
Sorry forgot to mention we got married in 2012!
Welsh - 29-Jun-17 @ 4:12 PM
Hi. Can you clarify.I left my wife 8 years ago and married my now wife 3 years later.When I left my first wife she had everything and I was made bankrupt in 2010, clear now thank god! I moved in I 2012having a tough time finding work, so was on benefits while she worked.We moved to Wales where we both worked and she sold the house in Scotland in 2013.2014 she bought This house from the proceeds and we've lived here for 3 years!I'm worried!She insists we can't have a joint account in fact we are not financially attached at all.All the utilities are in her name the only bill our joint names are on is the council tax.She's been ill for three years and receives benefits pip etc.I'm registered as her Carer but don't receive money as I'm self employed.We basically share the bills.Her only income are her benefits!We've not been getting on over the last year and she wants to move back to her family.I'm worried that she'll want to separate. Because the thought of moving back to the place of all my bad memories, bankruptcy, depression fills me with dread. She controls me regarding money as she buys what she wants for the house and I'm constantly made aware that this is her house.I've do loads of work in the garden round the house, care for her when she needs it. We have a good life, holidays etc even though we can't reallly afford it.I have a good credit rating but she as arrangements with her debters.I gave her £5000 to cover some of the debt when I cashed in a pension! My question is if it all goes pear shape and she asks me to leave, or I leave of my own volition and we separate what are my rights regarding assets and property.I feel I've put so much into this relationship, both emotional physical and financial.If we discuss money it ends up a row because everything is in her name. I have a van, tools and my personal effects. I believe she thinks the rest is hers.Please help?
Welsh - 29-Jun-17 @ 4:10 PM
Trouble & Strife - Your Question:
Trouble and Strife - Your Question:Hi, my wife and I separated 9 months ago. We are selling the marital home and decided between us that we will split the proceeds 50/50. We have both signed an agreement with the solicitor dealing with the sale to show that we both agree to this. I now want to buy my own house using my half of the proceeds from the sale + mortgage. Later on when it comes to the divorce, can she have any claim to my new house, even though we agreed that we would split the equity from the sale of the marital home equally?Our Response:If it is shown the money was split fairly and is not sidelined from the marital pot without your ex's knowledge, then you shouldn't have a problem.DivorceResource - 27-Jun-17 @ 3:16 PMJust to add to this, I will be funding my new purchase with my share of the equity from the sale, which we have both agreed will be split 50/50, as well as my own mortgage, and some additional savings towards the deposit. Am I still likely to not encounter any problems later on when it comes to the divorce, or am I at risk of her being able to successfully make a claim for my new property?

Our Response:
Much depends upon whether the 'additional savings' could be considered to be part of the joint marital pot. For instance, if you accrued these savings after you had separated and you can prove they are not part of your joint estate, then you shouldn't have a problem. However, if for instance these savings were perhaps accrued when you were married and your ex is not aware of them, then there could be repercussions. Where in doubt seek legal advice, your solicitor will tell you if there is likely to be a future issue.
DivorceResource - 29-Jun-17 @ 11:45 AM
Trouble and Strife - Your Question: Hi, my wife and I separated 9 months ago. We are selling the marital home and decided between us that we will split the proceeds 50/50. We have both signed an agreement with the solicitor dealing with the sale to show that we both agree to this. I now want to buy my own house using my half of the proceeds from the sale + mortgage. Later on when it comes to the divorce, can she have any claim to my new house, even though we agreed that we would split the equity from the sale of the marital home equally? Our Response: If it is shown the money was split fairly and is not sidelined from the marital pot without your ex's knowledge, then you shouldn't have a problem. DivorceResource - 27-Jun-17 @ 3:16 PM Just to add to this, I will be funding my new purchase with my share of the equity from the sale, which we have both agreed will be split 50/50, as well as my own mortgage, and some additional savings towards the deposit. Am I still likely to not encounter any problems later on when it comes to the divorce, or am I at risk of her being able to successfully make a claim for my new property?
Trouble & Strife - 27-Jun-17 @ 4:12 PM
Trouble and Strife - Your Question:
Hi, my wife and I separated 9 months ago. We are selling the marital home and decided between us that we will split the proceeds 50/50. We have both signed an agreement with the solicitor dealing with the sale to show that we both agree to this. I now want to buy my own house using my half of the proceeds from the sale + mortgage. Later on when it comes to the divorce, can she have any claim to my new house, even though we agreed that we would split the equity from the sale of the marital home equally?

Our Response:
If it is shown the money was split fairly and is not sidelined from the marital pot without your ex's knowledge, then you shouldn't have a problem.
DivorceResource - 27-Jun-17 @ 3:16 PM
Hi, my wife and I separated 9 months ago. We are selling the marital home and decided between us that we will split the proceeds 50/50. We have both signed an agreement with the solicitor dealing with the sale to show that we both agree to this. I now want to buy my own house using my half of the proceeds from the sale + mortgage. Later on when it comes to the divorce, can she have any claim to my new house, even though we agreed that we would split the equity from the sale of the marital home equally?
Trouble and Strife - 27-Jun-17 @ 12:02 AM
@Gogobaby - he would, if the house is in his name.
KateSWi - 19-Jun-17 @ 3:12 PM
Hi my husband and I have separated and we are likely to divorce, we have 3 children under 8, my parents gifted me a house before I was married and one after I was married, both in my sole name, they then gifted the home i are in now to both me and my husband, what would he have rights too?
Gogobaby - 18-Jun-17 @ 5:59 PM
Curious - Your Question:
Have a mortgage with my ex husband. Taken out 15 years ago. Full100% mortgage no deposit. He left 8years ago and hasn't contributed to the mortgage or house since. When I sell is he entitled to half of the equity? Thanks

Our Response:
If you can't come to a mutual agreement about who gets what and you disagree then the matter would have to go to divorce arbitration or court. If this is the case, the courts will take into consideration your financial input to the mortgage and redistribute fairly/accordingly. However, it is always much less costly overall to come to a joint agreement between you both, if you can.
DivorceResource - 13-Jun-17 @ 4:03 PM
Hi dear Im separated with my almost ex husband. With my new partner we want to buy a property. We already have mortgage certificate and property solicitor. Also we choose a flat. After we fill up application we have to back to Bank ( thats my partner Bank) both to finalized process. My question is: In the end, Bank can say NO to us cos Im still married ? That will be shared mortgage. Our first one. I want to do step foward. But separation time before divorce is long. I dont have nothing with my husband ( loans, children or other ) just nothing.
Nela - 12-Jun-17 @ 7:58 PM
Confused.- Your Question:
I have been separated from my husband for three years now. I'm just in the process of buying a house with my partner. The deposit is a gift deposit from my father. Would there be any way that my hopefully, soon to be ex husband is entitled to it. Even though no money used to buy the property is from him. He doesn't know I'm in the process of buying and just know he will be vindictive about it all. Any advice would be grateful

Our Response:
Your ex husband would have no claim on this money, if it has come from another source. Only if it comes from the joint marital pot might he have a claim.
DivorceResource - 12-Jun-17 @ 3:45 PM
I have been separated from my husband for three years now. I'm just in the process of buying a house with my partner. The deposit is a gift deposit from my father. Would there be any way that my hopefully, soon to be ex husband is entitled to it. Even though no money used to buy the property is from him. He doesn't know I'm in the process of buying and just know he will be vindictive about it all. Any advice would be grateful
Confused. - 9-Jun-17 @ 1:25 AM
My sister in law is in a civil same sex union. Both of them have mortgages on their own homes but live in my sister in law's house that she had prior to their relationship. (House is in my SIL's name only). They have lived together for four years and have now broken up. My SIL's wife thinks she is entitled to half my SIL's home and refuses to move out. She has not contributed to the mortgage and quit her job not long after moving in and my SIL has been supporting her financially ever since. Is her civil wife entitled to half the house?
Jools69 - 8-Jun-17 @ 9:10 PM
Have a mortgage with my ex husband. Taken out 15 years ago. Full100% mortgage no deposit. He left 8years ago and hasn't contributed to the mortgage or house since. When I sell is he entitled to half of the equity? Thanks
Curious - 7-Jun-17 @ 9:00 PM
I have a mortgage with a parent was married for 9 years now in process of a divorce does my ex have a claim on my property. They are on no joint accounts have never been on any of the bills or deeds. The only people on the the deeds joint account and bills are myself and my parent/parents.
Unsure - 7-Jun-17 @ 8:36 AM
Hi I've been with my wife for only 9 months, we will be divorcing when we hit the 1 year 1 day mark. We don't have any children and we both earn the same amount. I have moved out of our rental propety and back to my pre marital house. Unfortunately my commute to work is 2hrs right now hence I'm looking to buy a flat. The money will be coming from a remortgage of my pre marital home and none of her funds will be used. Would she have any potential claim on my second home if I was to purchase it before the divorce? Many thanks for your help
ftoguy - 4-Jun-17 @ 9:08 PM
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