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

Marital and Non-marital Assets

By: Lorna Elliott LLB (hons), Barrister - Updated: 13 Jul 2018 |
 
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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Nick - Your Question:
Hi,In response to your response this morning - No we don't have children. If we did I would of said so. And like I said yes im already seeking professional advice. So please can you give me some more specific unbiased opinion ?ThanksNick

Our Response:
As specified previously, there are too many complicated variables to give advice online. As a rule, if the marriage is short, then all property acquired by either spouse before the marriage is considered non-marital. All property purchased after the marriage is considered jointly owned. However, much depends upon the financial needs of the other spouse which your own solicitor can best advise on when given the full details. We are not a service that offers 'specific' guidance, only rudimentary.
DivorceResource - 13-Jul-18 @ 2:38 PM
Hi,In response to your response this morning - No we don't have children. If we did i would of said so. And like i said yes im already seeking professional advice. So please can you give me some more specific unbiased opinion ? Thanks Nick
Nick - 13-Jul-18 @ 1:24 PM
Louie - Your Question:
I have been married since June 2012 but am going through divorce proceedings as of May this year. Prior to getting married, I was given a gift of money which I used as a deposit on a house. The house was purchased after the marriage and we were both on the mortgage. At the time of purchase, a document was signed that accompanied the mortgage that stated if we split up I would receive the deposit money back. Does the deposit money still count as a non-matrimonial asset or is my ex-partner entitled to half of it now?

Our Response:
Much depends upon other circumstances and needs and whether you may have children and what their needs are. However, if there are no children and you signed a pre-nuptual agreement of sorts, the chances are the money will revert back to you. You may wish to seek legal advice to verify this.
DivorceResource - 13-Jul-18 @ 11:36 AM
Nick - Your Question:
Hi, Im Seeking some informal advice please.Been together with my wife 9 years and married 5. She has a "normal" job. I own a limited company.100% mine & set up before we were married.I also have 4 rental properties, again all purchased by just me in my name and prior to our marriage. We live in our marital home which is join 50/50 owned.Our marriage fell apart & I applied for the divorce. She is trying to make claim to my rental properties and limited company. (She's never even put 10p into any of them)I am of course seeking formal advise but any informal advice in respect to what she will "likely" end up with or the way the situation will be viewed or any other advice will be most welcomed.Much appreciatedNick

Our Response:
You don't say whether you have children together, as this would make a difference. In this case, you may benefit from taking professional legal advice as even through the marriage has been short, there are other variables that need to be considered.
DivorceResource - 13-Jul-18 @ 11:33 AM
I have been married since June 2012 but am going through divorce proceedings as of May this year.Prior to getting married, I was given a gift of money which I used as a deposit on a house.The house was purchased after the marriage and we were both on the mortgage.At the time of purchase, a document was signed that accompanied the mortgage that stated if we split up I would receive the deposit money back.Does the deposit money still count as a non-matrimonial asset or is my ex-partner entitled to half of it now?
Louie - 12-Jul-18 @ 2:26 PM
Hi, Im Seeking some informal advice please ...... Been together with my wife 9 years and married 5. She has a "normal" job. I own a limited company.100% mine & set up before we were married. I also have 4 rental properties, again all purchased by just me in my name and prior to our marriage. We live in our marital home which is join 50/50 owned. Our marriage fell apart & i applied for the divorce. She is trying to make claim to my rental properties and limited company. (She's never even put 10p into any of them) I am of course seeking formal advise but any informal advice in respect to what she will "likely" end up with or the way the situation will be viewed or any other advice will be most welcomed. Much appreciated Nick
Nick - 12-Jul-18 @ 1:44 PM
Vee - Your Question:
I was given a property by father some 25years ago.got married 4years ago and she applied for divorce ,now she wants half share of that inheritance.can she have it?

Our Response:
It's unlikely your ex would be able to claim half given the length of time ago that you were given the inheritance and the short marriage. In a marriage under five years, the assets and finances can revert back to the original owner. Unless you have a child/children between you, then this would make a difference. You may wish to seek legal advice in order to explore your options.
DivorceResource - 12-Jul-18 @ 1:01 PM
Jake - Your Question:
I would like to know what would happen if me and my wife of 7 years got divorced. I have a house in my name and a private pension which I will gain access to when I turn 55 (next December) we both have 2 children. 2 have moved out and 2 remain at the property with us. (My son & her daughter) she has been paying the mortgage for the last couple of years due to myself being out of work along with some other bills.What would she be entitled to if we were to divorce?

Our Response:
Much depends upon how long you had the house prior to marriage and what your wife's incomings and needs are also. In this case, it is recommended that you take legal advice in order to explore what your options are.
DivorceResource - 12-Jul-18 @ 12:48 PM
I was given a property by father some 25years ago.got married 4years ago and she applied for divorce ,now she wants half share of that inheritance.can she have it?
Vee - 11-Jul-18 @ 11:38 PM
I am from Fiji,I got divorced recently,with my just 4years lasting marriage. she got a new partner now.we had no kids together. I was given a property by my father 25years ago. My wife is asking for shares,can she have it?
Vee - 11-Jul-18 @ 11:32 PM
I would like to know what would happen if me and my wife of 7 years got divorced. I have a house in my name and a private pension which I will gain access to when I turn 55 (next December) we both have 2 children. 2 have moved out and 2 remain at the property with us. (My son & her daughter) she has been paying the mortgage for the last couple of years due to myself being out of work along with some other bills. What would she be entitled to if we were to divorce?
Jake - 10-Jul-18 @ 3:56 PM
Rita Richards - Your Question:
My husband and I have been married for over 10 years. He has bought a 2nd property in his name only, we jointly own the home we live in. We both work full time and have young children together. What rights do I have over the 2nd property if we divorce?

Our Response:
You have equal rights to the property if you divorce given the length of the marriage and the fact you have children together.
DivorceResource - 9-Jul-18 @ 1:48 PM
My husband and I have been married for over 10 years.He has bought a 2ndproperty in his name only, we jointly own the home we live in. We both work full time and have young children together. What rights do I have over the 2nd property if we divorce?
Rita Richards - 7-Jul-18 @ 10:20 PM
I owned my home since 98 bought and paid for since 07. Met and married my husband in 14 separated in 17. I built on the house in 16 but paid for it myself. I still have one of my stepdaughters living with me. If I don’t get divorced because of the children will the separation time count towards my divorce and what will my husband be entitled to. I have always paid more and he has never paid for the house just towards food and bills gas electric etc. He doesn’t pay towards his daughter or step son or anything to do with the house now he has left.
Runkid - 4-Jul-18 @ 10:23 AM
@Jhb - Much depends upon how long you have had the shares, when you were given them. If you were given them way before you were married, then your wife may not have a full claim. But in marriage everything is jointly owned. If you have kids and your wife looks after the kids or has them living with her, then yes she'll get half.
Charlie - 29-Jun-18 @ 12:35 PM
reggie - Your Question:
HiI am in a state of shock - my wife moved out and wants a divorce. The house is in my own name and was before we got married. She is not on the mortgage although was contributing towards the bills etc. Since our marriage 3.5 years ago, she sold her house and pocketed 30k from the proceeds. She has since also collected artwork to the value of 20k - this has been during our marriage. She has ISAs worth around 40k - again from money she inherited during the course of the marriage. She has moved into rented property and has taken the artwork from our marital home. She earns around 10k more than me currently and I am left in a bit of financial limbo trying to pay all the bills by myself.How do I stand financially in terms of her assets - are they considered joint assets? Does she have the right to take all of the artwork? And as she left the marital home, does she have any responsibilities towards myself in terms of giving me money towards household responsibilities? We have no children.

Our Response:
As the marriage has been short, in general terms any assets or savings accrued prior to marriage fall back to the person who owns them. However, anything accrued during the marrriage is deemed joint, apart possibly from the inheritance (this is debatable). If you own the house you are living in then the responsibility should fall back to you. With regards to the artwork this too is debatable (particularly if your ex bought the artwork herself). If you can agree a financial split between you, then this is for the best all round. Taking the matter to court to claim will cost significantly and can write off any gains. But, seeking legal advice in order to put things further into context may help. Otherwise, mutual agreement or mediation are your best options, court always a last resort.
DivorceResource - 29-Jun-18 @ 10:07 AM
When I was a child I was given shares in my fathers company. Having been married for 10 years I am now getting divorced and my ex is claiming the value of half of the shares. Is this right? Additionally we sold a house I owned before we were married and used that as the deposit on the marital home. Again is it correct that she gets half?
Jhb - 28-Jun-18 @ 10:44 PM
A - Your Question:
Hi I'm 25yrs old got married to my girlfriend 1 and half yrs ago now we going through divorce. I bought my first house back in 2014 awhile before I met my wife on buy to let and have tenant still living there she has no interest in that property as she never went to view nor did any work. But after we got married we both bought a joint mortgage house again she didn't pay for anything I paid the deposit and still paying the mortgage and etc. On my own she only pays for the gas and electric bill which is £44 per month. We don't have any kids will she get half of everything?

Our Response:
Your wife will not get half of 'everything' if you owned the house before marriage and you have had such a short marriage. However, if you bought the house between you then she will be entitled to something from the jointly owned house. You can either propose to agree between you and buy her out of her share of the equity, if there is any equity in the house.
DivorceResource - 28-Jun-18 @ 2:05 PM
Leo - Your Question:
Hi. My wife and I were married for just over 1 year. She had bought a house prior to us meeting and lived in mine for the 5 years we are together. She moved back to hers as the marriage ended. I have since bought a property. We are going through a divorse proceedings now. Does either party have a claim against the others property? Thanks

Our Response:
Much depends upon what you agree upon. If you can agree to go back to your respective homes and split your finances amicably, then this will work out much better for each of you. It only becomes complicated if one person feels they have more of a claim.
DivorceResource - 28-Jun-18 @ 12:43 PM
Hi I am in a state of shock - my wife moved out and wants a divorce. The house is in my own name and was before we got married. She is not on the mortgage although was contributing towards the bills etc.Since our marriage 3.5 years ago, she sold her house and pocketed 30k from the proceeds.She has since also collected artwork to the value of 20k - this has been during our marriage.She has ISAs worth around 40k - again from money she inherited during the course of the marriage.She has moved into rented property and has taken the artwork from our marital home.She earns around 10k more than me currently and I am left in a bit of financial limbo trying to pay all the bills by myself. How do I stand financially in terms of her assets - are they considered joint assets?Does she have the right to take all of the artwork? And as she left the marital home, does she have any responsibilities towards myself in terms of giving me money towards household responsibilities?We have no children.
reggie - 28-Jun-18 @ 9:48 AM
Arnold - Your Question:
Hello there, I really need some help. I have been with my (Ex fiance) on and off for a number of years. We have a house together that I paid the full deposit, I have also spent thousands of pounds improving it and hundreds of man hours myself doing the jobs to a very high standard. The house is being valued by goodness knows who as she won't say so I expect to get fiddled. I want to be able to buy them out. We have a little one together and I am not adverse to giving her money. My point is she is ruthlessly going for me and wants as much from the house as possible. Am I right to say she should have less if I have paid the deposit, lion share of Mortgage and all the home improvements. Thank you very much.

Our Response:
The significant factor here is that you have a child together. If your ex is remaining in the house with your child as the primary carer, then any court (should the matter go that far) will give preference to the main carer of your child. If you own the house jointly, then regardless of the 'man hours' you put in, it is irrelevant as the main concern for any court is first and foremost your child having a roof over her/his head. A court will always put your child's needs first, as in principle should you. Many couples agree between them or via mediation what should happen with the house. You can see more via the link here. You may also wish to seek some legal advice if you wish to explore your options.
DivorceResource - 28-Jun-18 @ 9:28 AM
Hi. My wife and I were married for just over 1 year. She had bought a house prior to us meeting and lived in mine for the 5 years we are together. She moved back to hers as the marriage ended. I have since bought a property. We are going through a divorse proceedings now. Does either party have a claim against the others property? Thanks
Leo - 27-Jun-18 @ 6:37 PM
Hello there, I really need some help. I have been with my (Ex fiance) on and off for a number of years. We have a house together that I paid the full deposit, I have also spent thousands of pounds improving it and hundreds of man hours myself doing the jobs to a very high standard. The house is being valued by goodness knows who as she won't say so I expect to get fiddled. I want to be able to buy them out. We have a little one together and I am not adverse to giving her money. My point is she is ruthlessly going for me and wants as much from the house as possible. Am I right to say she should have less if I have paid the deposit, lion share of Mortgage and all the home improvements. Thank you very much.
Arnold - 27-Jun-18 @ 2:19 PM
Hi I'm 25yrs old got married to my girlfriend 1 and half yrs ago now we going through divorce. I bought my first house back in 2014 awhile before i met my wifeon buy to let and have tenant still living thereshe has no interest in that property as she never went to view nor did any work. But after we got married we both bought a joint mortgage house again she didn't pay for anything i paid the deposit and still paying the mortgage and etc.. On my own she only pays for the gas and electric bill which is £44 per month. We don't have any kids will she get half of everything?
A - 26-Jun-18 @ 6:19 PM
I have been married 3.8 years and separated for 10 of them. When I get divorced does the 2 years I have to wait count when they are looking at the short marriage. I had bought and paid for my house many years before I met my husband with my inheritance. He didn’t bring anything to the marriage but he did sell the house he and his partner of 16 years had as she moved out and she wanted to sell. He paid £500 a month towards bills as did I. I also built on to the house and paid for that myself to accommodate his two children, one of whom has stayed with me and my children. Will it be classed as a short marriage and he not have a claim on my home as I bought that.
Runkid - 26-Jun-18 @ 8:00 AM
Mrsloop - Your Question:
I’ve been married 2 years, my dad has gifted me £55k to put down on a mortgage he has made me concerned as he said he is worried if we get divorced he is entitled to it? Where do I stand with this, obviously I don’t want to get divorced but is there anyway I can get something drawn up about this or not?

Our Response:
You could get this drawn up via a solicitor in a pre-nuptual type agreement.
DivorceResource - 22-Jun-18 @ 2:24 PM
I’ve been married 2 years, my dad has gifted me £55k to put down on a mortgage he has made me concerned as he said he is worried if we get divorced he is entitled to it? Where do I stand with this, obviously I don’t want to get divorced but is there anyway I can get something drawn up about this or not?
Mrsloop - 22-Jun-18 @ 10:43 AM
Thirteenyears ago I bought a flat jointly with my sister, with help from our parents who lent us £25,000 deposit.My sister then moved to New Zealand and while she is still on the deeds has handed the flat over to me verbally. Six months later I met my future husband who at that point was unemployed and was training to be a pilot.I supported him, paid his debts and for some of his flying lessons, totalling some tens of thousands.He got a job, we married, moved to Kenya, and had two children, now 5 and 7.I let the flat but it doesn't really wash its face, and it was bought just before the market crash and its value has still not reached the original purchase price.It was purchased from the developer with a help to buy type of agreement which meant that I had to pay them back £60,000 three years ago and my husband took out a loan which is being paid off at the moment.We also decided to overpay in order to reduce the capital debt.Since then our marriage has hit the rocks, my husband is living in Dubai earning about £10,000 a month tax free and I am on benefits in the U.K.He pays my rent and a little towards child maintenance but it often isn't enough.He has always been bad with money - for instance he has had to extend the loan to pay off his own credit card debt - and now he wants me to sell the flat and expects to get the lion's share of the equity to cover the payments he has made.He refuses to think about setting it off against me keeping him at the beginning of the relationship. He seems to think he can have £40,000 which would leave me with £5,000.He also thinks that my parents should only have a percentage of their loan back. It is my only asset, as there is no matrimonial home, mainly due to his inability to manage money or save.Can this be right?
Marsh frog - 19-Jun-18 @ 1:20 PM
The Boss- Your Question:
Hi, I married my ex in 2010 and we are both in our early 60's,We got divorced in January 2017 but separated in April 2016 so been married for just under 6 years and lived together for 8 years. I have my own business and 2 properties and my ex has one flat that he re-mortgage twice and was renting it out while living in my home. I have always paid all the bills and he never contributed to any of the household bills (not even food or holidays)during out time together he worked for under 3 years and his income from his flat rental was supporting his children and firs wife. he also studied for 3 years and his student loan was used to support his kids and first wife also. We had a joint account and during the marriage £3000 was paid into it by him but £2900 was moved back into his own account. We are have gone to court last month as he wants me to pay him £140,000 to cover his mortgage and his debits. he lives in his flat and has a lodger who pay him rent, he also have income of £1000 to £1800 going into his account monthly although he is claiming to earn £1500 a year. The judge has instructed my Barrister that I need to pay a substantial chunk of his mortgage even though I have my own mortgage to pay and I am also in my 60's. All my assets are mine and obtained long before I met him- where do I stand?

Our Response:
Unfortunately, there is little I can do here to advise, especially as this matter has reached court and the judge has made an instruction. Regardless of what your ex earned or spent during the marriage, this is considered not relevant because during the marriage you are considered a singular item and your finances as one. What counts in this instance is what came before and the subsequent 'needs' of each person into the future. The Matrimonial Causes Act 1973, section 25 (2) states the important matters that should be considered above the ownership of property. In brief these are the; the income, earning capacity of each party, going into the future. The financial needs, obligations and responsibilities of each party. The standard of living enjoyed by each party before the breakdown of the marriage. Age and duration of marriage etc. The judge starts at a 50-50 split and works backwards taking into consideration pre-marital assets and needs of each party going into the future before making the final calculation.
DivorceResource - 12-Jun-18 @ 9:36 AM
hi, I married my ex in 2010 and we are both in our early 60's,We got divorced in January 2017 but separated in April 2016 so been married for just under 6 years and lived together for 8 years. I have my own business and 2 properties and my ex has one flat that he re-mortgage twice and was renting it out while living in my home. I have always paid all the bills and he never contributed to any of the household bills (not even food or holidays)during out time together he worked for under 3 years and his income from his flat rental was supporting his children and firs wife. he also studied for 3 years and his student loan was used to support his kids and first wife also. We had a joint account and during the marriage £3000 was paid into it by him but £2900 was moved back into his own account. We are have gone to court last month as he wants me to pay him £140,000 to cover his mortgage and his debits. he lives in his flat and has a lodger who pay him rent, he also have income of £1000 to £1800 going into his account monthly although he is claiming to earn £1500 a year. The judge has instructed my Barrister that I need to pay a substantial chunk of his mortgage even though I have my own mortgage to pay and I am also in my 60's. All my assets are mine and obtained long before I met him- where do I stand?
The Boss - 11-Jun-18 @ 4:18 PM
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