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

Marital and Non-marital Assets

By: Lorna Elliott LLB (hons), Barrister - Updated: 15 Nov 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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Suz - Your Question:
Together for 8 years, married for 8 months - no property or children. Both have good jobs and are in our 30s. He has a sizeable amount of savings. Am I entitled to any of them that have accrued during our relationship (and not just our marriage)

Our Response:
Unless the account was in joint names when you were in a partnership, then you wouldn't be able to claim this money, please see link here . If the marriage had have been a long one, then you may have had a claim. But as the marriage was short, then it is highly unlikely.
DivorceResource - 17-Nov-17 @ 12:58 PM
Carol - Your Question:
Q. I was married for 28 years. My husband had some form of breakdown and decided to kick myself and my Daughter of the Martial Home. I never went back, I never claimed any of the contents (many which were antiques) and was happy to take a 50/50 split on the sale of the home. During the period of our marriage we mortgaged our martial home to purchase a property in Spain, upon the sale of our home this mortgage was paid off, it was understood that the Spanish property should be sold and the proceeds separated. Unfortunately my Husband has had a change of heart and has decided to keep the property and according to him, due to the fact that The Spanish property is in his sole name, he is entitled to keep the whole of the proceeds. We have been separated for 5 1/2 years now, but still have not divorced.

Our Response:
You would need to speak to a solicitor regarding this. If the money used to buy the property was from the joint marital pot then it should be considered and you would have a claim.
DivorceResource - 16-Nov-17 @ 9:37 AM
Q. I was married for 28 years. My husband had some form of breakdown and decided to kick myself and my Daughter of the Martial Home. I never went back, I never claimed any of the contents (many which were antiques) and was happy to take a 50/50 split on the sale of the home. During the period of our marriage we mortgaged our martial home to purchase a property in Spain, upon the sale of our home this mortgage was paid off, it was understood that the Spanish property should be sold and the proceeds separated. Unfortunately my Husband has had a change of heart and has decided to keep the property and according to him, due to the fact that The Spanish property is in his sole name, he is entitled to keep the whole of the proceeds. We have been separated for 5 1/2 years now, but still have not divorced.
Carol - 15-Nov-17 @ 3:24 PM
Together for 8 years, married for 8 months - no property or children. Both have good jobs and are in our 30s. He has a sizeable amount of savings. Am I entitled to any of them that have accrued during our relationship (and not just our marriage)
Suz - 14-Nov-17 @ 7:28 PM
Annie - Your Question:
Im filing for a divorce,I'm working but get universal credit.My parents want to buy me a new car as mine is old and unreliable. Can my ex get the car ,he is also cross petitioning the divorce as he is bitter that I've met someone else,even though this was after we split up.

Our Response:
As long as the money is not coming out of the joint marital pot, then your parents are free to buy you a car. If you can prove (if needs be) that your parents have gifted you the money for the car, then your ex would not be able to make a claim against it. Only if you take money deemed to be from the marriage, would your husband be able to claim.
DivorceResource - 10-Nov-17 @ 12:58 PM
Im filing for a divorce,I'm working but get universal credit.My parents want to buy me a new car as mine is old and unreliable. Can my ex get the car ,he is also cross petitioning the divorce as he is bitter that I've met someone else,even though this was after we split up.
Annie - 7-Nov-17 @ 6:21 PM
@John - if the marriage has been short, he might get away with not giving her very much if she came into the marriage with not very much. He needs to see a lawyer - a solicitor will tell it to him straight.
Jexx - 6-Nov-17 @ 3:13 PM
Please advise my friend married last year a woman he dated for 2 years , they never lived together until they married (which she had pushed for ) within weeks of moving in she has a full mental breakdown...turnd out she had serious mental health issues and is now fully under a mental health team, weighs six stone and claiming disability benefit! She stayed on spate room and left back to live with her parents (and is still there ) their older and second marriage for them both...no children she lives in rented before moving in so no property , no assetsand never paid a bill for the six months she lives on the spare room . He offered her 50k for divorce he owned his house outright for 20 years and has savings his retired so need this to live and his first divorce cost him 100s of thousands ! She refused the 50 k her parents in their 80s are paying legal costs ! They don't want her either as it turns out She s had mental health issues her whole life! And goes through periods of functioning hence the hiding of it to my friend ! She wants him to buy her a house and have a garden etc! Basically a marriage that lasted weeks is going to cost him 200k for a property to get rid of her ! She s threatened him threatened suicide, making his life a misery even though she hasn't lived with him now for a year ! His suicidal ! Any advice gratefully received as his obviously been stooged, was an idiot to not have a prenup but surely if she came in with nothing then within weeks imploded (all evidence of this is kept ) then he shouldn't have to provide her a home etc she was self sufficient before they met up to day of marriage and when her elderly parents die she will be well off and have their house and currently as stated living happily their claiming disability due to bipolar and mental health
John - 4-Nov-17 @ 11:11 AM
JC - Your Question:
Separated after 6 months of marriage. Husband's decision to end. Property in his sole name he bought 2 years before I moved in. I lived there for 3 years and contributed equally to mortgage, bills and home improvements. I paid more for the year he was out of work too. We are trying to negotiate a settlement. House worth approximately £300,000. I don't want the house but a fair financial sum. Do I have any rights if it goes to court?

Our Response:
It's a tricky position due to the fact your marriage has been short. Plus, you don't say whether there is any equity in the house. As a rule, less than five years is generally considered by the family courts to be a short marriage. If you don't have children with your husband, family courts will generally opt for a 50/50 split of all equity/assets accrued 'during' the relationship to be a fair division. If your husband owned the house prior to marriage and put down a substantial deposit etc, he is likely to be allowed to retain this. A court may aim is to simply restore you both to the financial level you were at before the marriage. It will also take into consideration that you also lived togther prior to marriage. A fair agreement made between you both would be the best way forward, if this can be agreed via mediation. Once either of you take the matter to court, it's the solicitors who will benefit more financially from you both through legal costs. However, some legal advice would be advised in the first instance in order to fully explore your options.
DivorceResource - 31-Oct-17 @ 10:32 AM
Separated after 6 months of marriage. Husband's decision to end. Property in his sole name he bought 2 years before I moved in. I lived there for 3 years and contributed equally to mortgage, bills and home improvements. I paid more for the year he was out of work too.We are trying to negotiate a settlement. House worth approximately £300,000. I don't want the house but a fair financial sum. Do I have any rights if it goes to court?
JC - 30-Oct-17 @ 2:58 PM
My husband and I are in the process of splitting our assets. I owned a house with equity of approximate £160 000 prior to marriage (which was then used as part payment to our current home) and had significantly more money in my pension. My husband has shares in his family business which have grown in value over the years and owned some industrial land. His interests in his family business and land are considered as pre marital assets. Should my equity in the house plus pension pot be viewed in this way?
Danny - 25-Oct-17 @ 10:28 PM
Patri - Your Question:
Hello, we married in Spain and reside in U.K. Our marriage is registered in Spain officially. I have a flat in London that I bought when I was single. If I get divorce now by UK law, will the flat be also his? In Spain, properties bought before getting married belong to whoever owned it. We also have a house in joint names in U.K. We have two little kids. He has a lover and says our marriage doesn't work. He wants separation but won't leave the family home. He wants mediation. This is driving me mad as I can't get the space I need to cry and get over.

Our Response:
In the UK, much depends upon how long you have been married. If the marriage has been a long one, then the more claim your husband will have on your home. If the marriage has been short i.e under five years, it is more than likely your previously owned property will be awarded to you (if it goes to court). You may wish to seek legal advice to see whether you can request an occupation order through the courts. In order to be able to apply for an occupation order you must be able to show that you are legally entitled to stay in the property, either as a tenant or owner of the property.
DivorceResource - 23-Oct-17 @ 1:59 PM
Hello, we married in Spain and reside in U.K. Our marriage is registered in Spain officially. I have a flat in London that I bought when I was single. If I get divorce now by UK law, will the flat be also his? In Spain, properties bought before getting married belong to whoever owned it. We also have a house in joint names in U.K. We have two little kids. He has a lover and says our marriage doesn't work. He wants separation but won't leave the family home. He wants mediation. This is driving me mad as I can't get the space I need to cry and get over.
Patri - 22-Oct-17 @ 7:05 PM
SomeGuy - Your Question:
Hi, my wife is divorcing me - I've agreed to divorce given circumstances.Prior to marriage I had property as did she. When we started dating she bought property in France (she is a French national and has been living in the UK for a good 20 years) at the time she asked me if I wanted to be on the deeds I said no. We had a child in 2002and married in 2011. In 2003 we bought a house - my name is solely on deeds as I put £100k down and have been paying mortgage unaided for most of the time I've had it, but it was considered family house. My wife later chose to leave family house as we separated. We then got back together. Since then my wife got compensation which she said she'd share with me as we were together when she got it, we bought a house with compensation but put it in her name for tax reasons. She has since made me leave house and changed locks (stating she lost keys but won't give me a set) but she's saying it was never the family house which is a deliberate attempt to distance me. I found house - was involved with negotiations, designed everything, spent 6 months working wage free on it and also spent in the region of £2-3k on it on various building materials etc. My question is 1) how do we divide assets? Is it 50/50 rule and everything goes into pot? 2) or do we split by matrimonal and non matrimonal? 3) is french property included in any way? 4) can she cut me out of new house given what I have told you? I know it's a lot but would really appreciate some guidance. Thanks SG

Our Response:
In this case, you would need to seek either mediation or legal guidance where you cannot agree. Much depends upon what you both feel is fair. If you cannot decide between yourselves what you feel is fair, then mediation is the next step. Court is the last resort, which will cost a lot more than coming to a reasonable agreement between you both. Unfortunately, this doesn't really answer your question, but it is obviously a complicated situation. It would be much easier for you both to come to a joint agreement than thrash it out through a costly court when the only people who will gain from this finacially are your legal representatives. However, you may wish to seek legal advice, for advice upon what you both legally have a claim to. You could do this together, or singularly, that's up to you.
DivorceResource - 19-Oct-17 @ 12:09 PM
Sean - Your Question:
I have been married 5 years,i bought a house myself before we met and when married we lived in her house, now we are seperating, would she be entitled to anything, from my house that I bought before we met.?

Our Response:
Much depends upon whether you have children between you or not. As a rule, if the marriage has beeen short and there are no children involved, then unless your wife had put money into the house it is unlikley she would have any claim, especially if she has property of her own (which you too may be entitled to claim on if you had put money into it). However, it sounds as though if you both own a house, then it may be wise to come to an agreement that you both keep your respective houses once your separate.
DivorceResource - 19-Oct-17 @ 10:35 AM
I have been married 5 years,i bought a house myself before we met and when married we lived in her house, now we are seperating, would she be entitled to anything, from my house that i bought before we met.?
Sean - 18-Oct-17 @ 3:37 PM
Hi, my wife is divorcing me - I've agreed to divorce given circumstances. Prior to marriage I had property as did she. When we started dating she bought property in France (she is a French national and has been living in the UK for a good 20 years) at the time she asked me if I wanted to be on the deeds I said no. We had a child in 2002and married in 2011. In 2003 we bought a house - my name is solely on deeds as I put £100k down and have been paying mortgage unaided for most of the time I've had it, but it was considered family house. My wife later chose to leave family house as we separated. We then got back together.Since then my wife got compensation which she said she'd share with me as we were together when she got it, we bought a house with compensation but put it in her name for tax reasons. She has since made me leave house and changed locks (stating she lost keys but won't give me a set) but she's saying it was never the family house which is a deliberate attempt to distance me. I found house - was involved with negotiations, designed everything, spent 6 months working wage free on it and also spent in the region of £2-3k on it on various building materials etc. My question is 1) how do we divide assets? Is it 50/50 rule and everything goes into pot? 2) or do we split by matrimonal and non matrimonal? 3) is french property included in any way? 4) can she cut me out of new house given what I have told you? I know it's a lot but would really appreciate some guidance. Thanks SG
SomeGuy - 18-Oct-17 @ 8:20 AM
Al - Your Question:
I purchased my grandmothers house with her 50/50 two years before I got married. I got married in 2000 and purchased a house with my wife. In 2004 my grandmother signed over her share to my sole name as a gift with love and attention. As my inheritance. My grandmother had a life free rent in the house till she sadly passed years later. I'm and getting divorced now after my wife having an affair. She is claiming that she is in titled to half my grandmothers house even when my sole name is on the deeds and my half was purchased before we got married and my grandmothers share was gifted to me. I live in Scotland

Our Response:
You would have to seek legal advice regarding this. If you have been married for 15 years, then this is considered a long enough marriage for your wife to be able to make a claim. Likewise, if you have children together then this will also be taken into consideration. Some legal advice is needed here.
DivorceResource - 10-Oct-17 @ 2:06 PM
I purchased my grandmothers house with her 50/50 two years before I got married. I got married in 2000 and purchased a house with my wife. In 2004 my grandmother signed over her share to my sole name as a gift with love and attention. As my inheritance. My grandmother had a life free rent in the house till she sadly passed years later. I'm and getting divorced now after my wife having an affair. She is claiming that she is in titled to half my grandmothers house even when my sole name is on the deeds and my half was purchased before we got married and my grandmothers share was gifted to me. I live in Scotland
Al - 9-Oct-17 @ 11:07 PM
Tron - Your Question:
My parents gifted myself and my siblings three rental properties, only to us not are partners now that I am going through a divorce would my.soon to be ex wife be entitled to any or some of these properties as they were a gift thanks

Our Response:
Yes, your wife may be entitled to make a claim against your (not your siblings) property. Much depends upon when it was gifted and whose name the property is in and how long you have been married, also whether you have any children together. You may wish to seek legal advice regarding this.
DivorceResource - 6-Oct-17 @ 3:04 PM
Autumn - Your Question:
16 years ago I got a settlement from a previous relationship that was quite substantial and owned a house outright with an income fund. One child from that relationship and I received a generous Child Maintenance per month which much of obviously went towards the upkeep of the house and my child of 4. I then married my husband and we moved into a bigger house with a small interest only mortgage. My husband now wants to separate and of course we need a financial order to be arranged. We have a teen daughter together also. He has been financially irresponsible in my view with contract works (various building works) going wrong for one thing, in all we have lost approximately £85k over the years due to his poor decisions. My income portfolio is depleted largely due to bailing him out and paying for family holidays etc. He has a large loan which was to pay off both our cards on account of those previous poor decisions, he did not consult with me on that loan. As I brought all of the capital into the relationship where do I stand with the law re pre-marital wealth and my own financial input from part-time work and over £1k per month from my ex up until a year ago? Also we have just remortgaged to pay for hefty school fees for the next two years for the youngest teen daughter.

Our Response:
Much depends on when you married your now husband and how long you have lived together. The longer the marriage, the more claim he will have on the marital estate. Unless your husband challenges you, then agreeing between youreslves is always the best way forward. The fact you brought the assets into the marriage will count, but how much depends upon his own financial contribution (despite whether his schemes have worked out or not). Legal guidance is advised here in order to explore your options fully.
DivorceResource - 6-Oct-17 @ 2:55 PM
16 years ago I got a settlement from a previous relationship that was quite substantial and owned a house outright with an income fund. One child from that relationship and I received a generous Child Maintenance per month which much of obviously went towards the upkeep of the house and my child of 4.I then married my husband and we moved into a bigger house with a small interest only mortgage.My husband now wants to separate and of course we need a financial order to be arranged. We have a teen daughter together also. He has been financially irresponsible in my view with contract works (various building works) going wrong for one thing, in all we have lost approximately £85k over the years due to his poor decisions.My income portfolio is depleted largely due to bailing him out and paying for family holidays etc.He has a large loan which was to pay off both our cards on account of those previous poor decisions, he did not consult with me on that loan.As I brought all of the capital into the relationship where do I stand with the law re pre-marital wealth and my own financial input from part-time work and over £1k per month from my ex up until a year ago?Also we have just remortgaged to pay for hefty school fees for the next two years for the youngest teen daughter.
Autumn - 3-Oct-17 @ 3:25 PM
My parents gifted myself and my siblings three rental properties, only to us not are partners now that I am going through a divorce would my.soon to be ex wife be entitled to any or some of these properties as they were a gift thanks
Tron - 3-Oct-17 @ 12:38 PM
junekath - Your Question:
I was married and we owned a house. We separated (never divorced) and with my share I paid deposit and bought a flat solely in my name. My husband squandered all his share. I took him back 5 years ago into my solely owned flat. He has contributed by doing work around the flat and pays me so much a month towards outgoings. Everything is in my name. We never divorced but we do not get on and I want him out of the flat. He keeps saying it is half his flat, he squandered his money on drink etc., and I bought a flat myself and pay for mortgage. Is he entitled to half. This is making me ill as it seems I am working hard for nothing. He squanders all his money and is heavily in debt. I know, unfortunately, he will be entitled to half my pension etc., he has no private pension so I will have to swallow this. It is my flat I am concerned about. Can anyone give me any advice?

Our Response:
If you are still married, then theoretically he will be entitled to make a claim against your estate. I should seek legal advice if I were you, in order to fully explore your options.
DivorceResource - 29-Sep-17 @ 3:21 PM
I was married and we owned a house.We separated (never divorced) and with my share I paid deposit and bought a flat solely in my name. My husband squandered all his share.I took him back 5 years ago into my solely owned flat.He has contributed by doing work around the flat and pays me so much a month towards outgoings. Everything is in my name. We never divorced but we do not get on and I want him out of the flat.He keeps saying it is half his flat, he squandered his money on drink etc., and I bought a flat myself and pay for mortgage.Is he entitled to half. This is making me ill as it seems I am working hard for nothing. He squanders all his money and is heavily in debt.I know, unfortunately, he will be entitled to half my pension etc., he has no private pension so I will have to swallow this. It is my flat I am concerned about. Can anyone give me any advice?
junekath - 29-Sep-17 @ 8:28 AM
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
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