Debate amongst matrimonial lawyers frequently focuses upon inherited assets: should they be treated as matrimonial assets for division on divorce?
How do the Courts treat such assets?
Following the landmark decisions in White and Miller/McFarlane guidance emerged that the parties should be given an equal start on the road to independence. Although this does not establish a rule of equality, a departure from equality must be justified as being ‘fair’.The key focal point is section 25(2) Matrimonial Causes Act 1973 which directs the Court to have regard to a number of factors when dealing with an application for ancillary relief (financial provision) for a party to the marriage. Two factors of particular significance in this debate emerge namely: other financial resources which each of the parties has or is likely to have in the foreseeable future; and the contributions which each of the parties has made.Section 25 therefore provides the Courts with significant discretion to consider contributions (whether that be from inheritance or otherwise) made by a party when determining financial settlements.
Recent cases highlight three important considerations:
1. When was the inheritance received?Whether the inheritance was received before or during the marriage or post-separation will be relevant. In certain circumstances, inheritance expected in the future may also be considered (if reasonably proximate and certain).
2. What was done with the inherited property?Legal authority distinguishes between whether the property was kept separate and apart or utilised during the marriage. One important indication of inherited property being treated as ‘matrimonial’ in nature is whether it was placed into joint names.
3. The nature and value of the inherited property
Underlying such considerations are two crucial section 25 factors hitherto unmentioned. Firstly, the length of marriage (may include pre-marital cohabitation): whether it be a short childless marriage, mid-length marriage or a long marriage.
The longer the marriage, generally the less weight a Court is likely to place upon the source of assets and contribution.
Secondly, the financial needs of a party: the fact that property is inherited by one party will carry little weight, if any, where the financial needs (e.g. housing needs) of the other party cannot be met without recourse to that property. This is especially the case where one party will have primary residence of children – their welfare is paramount.
There are however other section 25 factors the Court must consider if relevant, such as the age of the parties and health.
The facts of each particular case are unique and therefore the above guidance cannot be considered in isolation. The source of assets can be a crucial factor or of little significance but it is imperative that this is drawn to the advising solicitor’s attention when seeking advice. An experienced practitioner will be able to provide helpful guidance as to how the Court will likely treat inherited assets in your case.
Following the landmark decisions in White and Miller/McFarlane guidance emerged that the parties should be given an equal start on the road to independence. Although this does not establish a rule of equality, a departure from equality must be justified as being ‘fair’.The key focal point is section 25(2) Matrimonial Causes Act 1973 which directs the Court to have regard to a number of factors when dealing with an application for ancillary relief (financial provision) for a party to the marriage. Two factors of particular significance in this debate emerge namely: other financial resources which each of the parties has or is likely to have in the foreseeable future; and the contributions which each of the parties has made.Section 25 therefore provides the Courts with significant discretion to consider contributions (whether that be from inheritance or otherwise) made by a party when determining financial settlements.
Recent cases highlight three important considerations:
1. When was the inheritance received?Whether the inheritance was received before or during the marriage or post-separation will be relevant. In certain circumstances, inheritance expected in the future may also be considered (if reasonably proximate and certain).
2. What was done with the inherited property?Legal authority distinguishes between whether the property was kept separate and apart or utilised during the marriage. One important indication of inherited property being treated as ‘matrimonial’ in nature is whether it was placed into joint names.
3. The nature and value of the inherited property
Underlying such considerations are two crucial section 25 factors hitherto unmentioned. Firstly, the length of marriage (may include pre-marital cohabitation): whether it be a short childless marriage, mid-length marriage or a long marriage.
The longer the marriage, generally the less weight a Court is likely to place upon the source of assets and contribution.
Secondly, the financial needs of a party: the fact that property is inherited by one party will carry little weight, if any, where the financial needs (e.g. housing needs) of the other party cannot be met without recourse to that property. This is especially the case where one party will have primary residence of children – their welfare is paramount.
There are however other section 25 factors the Court must consider if relevant, such as the age of the parties and health.
The facts of each particular case are unique and therefore the above guidance cannot be considered in isolation. The source of assets can be a crucial factor or of little significance but it is imperative that this is drawn to the advising solicitor’s attention when seeking advice. An experienced practitioner will be able to provide helpful guidance as to how the Court will likely treat inherited assets in your case.
posted by RBM Davies & Partners LLP at
14:15
