It is an unfortunate fact that marriages break down. Filing for a divorce can be stressful and emotional, and extra pressure can be applied when it comes to the division of money, property, and belongings. For a couple that have been together for years, the ownership of assets is intertwined in terms of who paid for what, who contributed more (or less) financially, and other contributions that spouses have made – giving up work to bring up a family, for example.
This can make dividing up assets a complicated process, especially if one side feels that they have contributed more than the other over the years.
The division of assets when a marriage breaks down is a complicated process, with part of the stress of it being that there is little formula to it. This means that the decision on the division of assets can be decided by a judge if the couple cannot come up with an agreement between themselves.
This is increasingly becoming an issue as we are seeing more and more people getting married as they get older.
The court will have several considerations to make when it comes to pre-marital assets.
When a couple have been married for a long time, regardless of who the assets belonged to in the first place, assets can become assets in shared matrimonial property. This means that regardless of who was the original owner of a particular asset, it has moved into, essentially, shared ownership over time.
It is the case that normally, the longer the marriage has lasted, the greater number of assets that are added to the ‘marital pot’ – and these are assets that will be shared out when the couple separates.
Traditionally, pre-nuptial agreements were the thing of Hollywood actors and pop stars. Today, we are increasingly seeing the general public engaging in prenups. A pre-nuptial agreement is a contract that is made before a couple gets married that defines how certain assets will be divided up should the marriage end. Although this might seem to be a negative thing to do when a couple is getting married, it can help to save a lot of heartache, time, and money should a divorce happen.
It is important to remember, however, that in England and Wales, prenuptial agreements are not legally binding – although they are in Scotland. It is also important to note that a court will look to honour the pre-nuptial agreement as long as it is deemed to have been carried out correctly.
Some couples try to keep things as separate as possible whilst they are married. Many couples continue to use separate bank accounts, but it is useful to remember that this will not necessarily mean that these will not be added to the marital pot.
If any assets are inherited throughout a marriage, the court will look at them in a range of different ways of division depending on several factors. Whether money or assets have been used during the marriage is a big factor in this decision.
It is worth noting that should one partner get an inheritance after a divorce it is not necessarily so that the other will not be eligible for a share of this. This can be overcome by applying for a ‘clean break order’ from the court.
The pensions of both people will normally go into the matrimonial pot in the case of a separation. This means that the pension money will be split along with the other assets.
It is possible, however, to engage in pension offsetting. This means that one of the spouse’s pensions can be protected by offsetting the value against something else in the matrimonial pot, giving that partner their full pension, but by offsetting it against other assets.
Some people have the option of putting assets into a trust. This is not a guarantee that your assets will not be added to the marital pot should you get divorced from your spouse, but there is a chance that this may be the case – especially if the assets were placed in the trust before you got married and it was not touched whilst you were married.
Pre-nuptial agreements are the agreements that are made before marriage. However, it is also possible to write post-nuptial agreements – a contract that is made once the partners have been married, agreeing on how assets are divided should the marriage break down. Again, post-nuptial agreements are not legally binding in England and Wales but will certainly be taken into consideration during the division of assets should there be a divorce.
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Last reviewed on 11/07/23 by Alka Wood who is a Solicitor