You’re getting divorced and you have to tackle the complex process of dividing up assets between you and your partner. The needs of each party take priority. However, let’s assume that the judge in your case has decided that there are surplus assets, once needs have been met. Those assets can be loosely divided into matrimonial assets and non-matrimonial assets. What’s the difference?
The House of Lords addressed this question in Miller v Miller; McFarlane v McFarlane  1 FLR 1186. There is no definitive list. The different kinds of assets are not separate groups; they fall more along a spectrum of ownership. This changes over time, as the length of the marriage increases and the boundaries between separate and shared assets become blurred.
Baroness Hale, whose view is widely held, said:
“Prime examples of family assets of a capital nature were the family home and its contents, while the parties’ earning capacities were assets of a revenue nature. But also included are other assets which were obviously acquired for the use and benefit of the whole family, such as holiday homes, caravans, furniture, insurance policies and other family savings. To this list should clearly be added family businesses or joint assets in which they both work. It is easy to see such assets as the fruits of the marital partnership. It is also easy to see each party’s efforts as making a real contribution to the acquisition of such assets”.
In deciding which assets can be considered matrimonial ones, the court must take into account the duration of the marriage, the source of the assets and how those assets brought to the marriage by each party have been treated. They may have been enjoyed by both parties during their time together, or kept separate by the party who originally owned them.
However as a general principle, matrimonial assets are most likely to be divided equally between you and your partner, even if you took different roles in contributing to those assets (one the breadwinner, one the homemaker for example). An equitable split reflects that marriage is a joint venture and the contribution to assets is achieved jointly, with each partner supporting the other in different ways.
There are exceptions, and no two cases are alike. If you would like to discuss what may be considered matrimonial or non-matrimonial assets in your case, or if you want help with any other questions you have about getting divorced, please call Andrew Isaacs Solicitors to make an appointment.
Part three will examine other factors that are taken into account regarding assets that might otherwise be considered matrimonial, such as when the family home was inherited by either you or your partner; as well as covering the general principles governing the distribution of non-marital assets.