Property owned before marriage: what happens to it during divorce?
The majority of assets which have been acquired or built up during the course of marriage are added to the ‘matrimonial pot’ – this is normally divided up equally (there is an assumption of a 50:50 split as the starting point) between the couple when they get divorced.
The matrimonial home (the property which was shared by husband and wife) is generally part of this matrimonial pot, as are any other properties purchased during the marriage (even if these are not necessarily in joint names).
However, any property which was already owned by either spouse before they entered into marriage may be treated differently, and is not necessarily added to the matrimonial pot.
Is a house owned before marriage considered to be marital property?
Any non-matrimonial property, inherited assest and other assets which were already owned by one party prior to the marriage are called pre-marital assets and are treated as distinct to joint finances for purposes of divorce; as such they will often not be counted as part of the matrimonial pot and may instead be retained in full by the relevant party.
The rationale behind this distinction was set out in the case of White v. White, in which the court acknowledged “the view, widely but not universally held, that property owned by one spouse before the marriage, and inherited property whenever acquired, stand on a different footing from what may be loosely called matrimonial property.”
But whether or not a court will decide to exclude property owned before marriage from the matrimonial pot depends on various case-specific facts, including:
- Passage of time – in a lengthy marriage, where either party owned property before getting married, this property may gradually come to be viewed as matrimonial property (Miller v. Miller), even if it is not used as the matrimonial home, especially if it is not kept separate (see ‘mingling of property’ below).
- Mingling of property – where property was bought before marriage, it can end up being mingled with matrimonial property over time (eg if it is used as a family holiday home or income generated from it is used within the marriage). The more mingling that occurs (and the greater passage of time), the more likely that property owned before marriage will be added to the matrimonial pot (K v L) for purposes of calculating a divorce settlement.
What happens to property owned before marriage?
If property owned before marriage is considered to be marital property (see above) it will be added to the matrimonial pot. It will then be divided between the divorcing couple, according to the circumstances.
The starting point is generally a 50:50 split, but the court will consider section 25 of the Matrimonial Causes Act 1973 which sets out the various factors that should be taken into account when deciding how assets should be divided, eg:
- welfare of any children under the age of 18 (this is the primary consideration);
- the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
- the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- the standard of living enjoyed by the family before the breakdown of the marriage; and
- the age of each party to the marriage and the duration of the marriage.
Once the court has determined the weight of these factors, it will come to a decision regarding the split of the matrimonial pot. Any property owned before marriage may need to be sold and the proceeds divided in order to ensure an equitable split.
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How can I protect any property owned before marriage?
Property owned before marriage can be protected to some extent by a prenuptial agreement (or prenup). Prenups are basically contracts, entered into by a couple before they get married, which set out the intentions of how any assets should be divided in the event they get divorced.
A prenup can reduce the possibility of specified property (eg property owned before marriage) being added to the overall matrimonial pot, but it is not a guarantee. It is also possible to obtain a postnuptial agreement – which is essentially the same as a prenup, but is drawn up after marriage.
Should you obtain a Financial consent Order?
Yes, although obtaining a consent order is not a legal requirement is vital you obtain one, especially when deciding how to split finances, property and property/ assets obtain before marriage.
If you do not, you ex-spouse can claim on those assets years after your divorce.
We offer a fixed fee, no hidden charges financial consent order service for just £199. You are able to include whatever you feel is necessary. If you have agreed with your ex-spouse on how you are going to deal with your assets and pre-marital assets then this service is perfect.
It’s important to understand that your ex-spouse can make a claim on pre-marital assets, including property, later in life if you do not obtain one.
You can include your decision in regards to property within your financial consent order and make it legally binding.
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A qualified & experienced solicitor will draft your individual consent order.