It is important to establish the value of the financial assets on separation and then what is matrimonial and what is non-matrimonial assets.
During a divorce, people can assume that everything they own will be divided equally between them and their spouse, or conversely assuming their pre-marital assets or post separation assets will automatically be ring-fenced. Neither of this is the case.
Within a marriage, there are two broad categories of assets, referred to as matrimonial and non-matrimonial assets. The differentiation is important as it helps to determine which assets are subject to the principle of equality, i.e., sharing equally, and which are only divided to meet needs, if they are required.
Matrimonial assets are those that have been treated as joint and/or those that have acquired during the relationship, regardless of whose name the asset is in, for example the family home, bank accounts, shares and investments, vehicles purchased together, furniture, possessions and pension built during the marriage. It is not the type of asset that is important, rather what makes a matrimonial asset is if it was either: (a) acquired by either party during the marriage or pre-marital cohabitation; (b) it was used by you both and treated as a joint asset.
When negotiating a financial settlement in a divorce, the aim is to divide the matrimonial assets in a way that is considered fair and meets the reasonable needs of both parties. The starting point may be a 50/50 split, however this can be adjusted to achieve a fair outcome to ensure both parties needs are met from the division. It may be that a fair outcome will be achieved by an equal outcome and sometimes an unequal outcome will be a fair outcome. This is determined by way of consideration to the s25 checklist.
For matrimonial assets, it does not matter who originally bought the asset or who contributed to it. Under divorce statute both parties would have a strong claim to a share of these assets.
Assets may be considered non-matrimonial if they were acquired by either spouse before they got married or brought into the marriage from an external source. An example is inheritance received during the marriage and provided this has been kept separate and not mingled with matrimonial funds.
A party in a divorce has a weaker claim to non-matrimonial assets in a divorce. These assets are normally kept separate from the pot of matrimonial assets, which means you do not have to share them with the other party. There are two exceptions to this however: -
- The assets are needed to meet each party’s needs. Non-matrimonial assets can be shared between spouses only if the matrimonial assets are insufficient to meet each party’s reasonable needs. Courts have various ways of achieving a fair distribution and tailor their decisions to the specifics of each scenario. They have wide discretion to distribute assets in a way that is fair, and that includes adding non-matrimonial assets to the matrimonial pot if it is deemed necessary.
- Assets become co-mingled. It can be difficult to determine exactly which assets are matrimonial and non-matrimonial if the assets become blended together. An example of this would be using an inheritance that is received by one party that is then used by both parties. If non-matrimonial assets have been mixed with matrimonial assets or jointly used during the marriage, they may become subject to division.
On 2 July 2025 the Supreme Court handed down its judgment in the long running case of Standish v Standish [2025] UKSC 26 that emphasised the distinguish between matrimonial and non-matrimonial assets . The court found that:
- The sharing principle applies only to matrimonial property.
- Matrimonialisation or the conversion of non-matrimonial assets into matrimonial assets depends on the manner in which the parties treated the assets, and the intentions behind those actions, not on who owns them.
- Transfers into a party’s name (jointly or separately) alone is not enough to transfer the asset from non-matrimonial to matrimonial.
If you need advice on how your assets may be treated during a divorce, contact our family law team today on 0161 696 6193 for tailored guidance.
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