According to UK family law, property owned before marriage is typically considered non-matrimonial asset and is unlikely to be part of a divorce settlement. However, if the matrimonial pot does not meet the financial needs of both parties, the UK family court may consider splitting pre-marital assets acquired before marriage, as we explain below.
What are pre-marital assets
The term ‘pre-marital assets’, also known to as ‘non-matrimonial assets’, refers to items owned by an individual prior to marriage. Because they are owned before getting married, they are normally considered separate from assets acquired during the marriage. For this reason, they are not included in the matrimonial ‘pot’ for division in the event of separation. Pre-marital assets may include:
- Property – residential or commercial property owned, or part-owned, in the UK or outside of the UK
- Investments – shares, savings, ISA’s, and cryptocurrency
- Pensions – final salary scheme pensions, private pension scheme, or a business-related pension scheme held prior to marriage
- Businesses – shares in a business owned before marriage
- Inheritances – any form of inheritance, including possessions and money received prior to getting married
Assets owned before a marriage in a divorce settlement
When asked to make a decision on a divorce financial settlement, the UK family court requires full financial disclosure, including any pre-marital assets owned by either party. Full disclosure using ‘Form E’ is a legal requirement. Any attempt to hide or not disclose assets, whether marital or pre-marital, will result in serious legal consequences by a judge.
Factors that may help a judge to determine whether pre-marital assets will be included in a divorce financial settlement issued by the court include:
- Whether the asset was held before marriage – if the asset was held before marriage but while living together, it may still be seen as a marital asset.
- Whether there is a prenuptial or postnuptial agreement – nuptial agreements are not legally binding, but they may be taken into account by a judge when deciding on a divorce financial settlement. As such, they can help to remove any uncertainty or ambiguity around each party’s expectations regarding pre-marital assets.
- The reasonable needs of the divorcing parties and their children – if the marital assets alone are not enough to meet the reasonable needs of the divorcing parties and any children from the marriage, it may be necessary to include non-matrimonial assets in the marital ‘pot’ resulting in them being divided.
- The length of the marriage – the longer the marriage, the more likely it is that pre-marital assets will be included within a divorce financial settlement.
- Whether the pre-marital asset (e.g. a home) has been used by the family during the marriage – if so, it is more difficult to argue that it should not be included in the divorce financial settlement.
How to protect pre-marital assets
You may be able to protect property owned before marriage through a prenuptial or postnuptial agreement to some extent. This is because while they are not legally binding, it may help the judge to better understand the intentions and understanding of both parties with respect to pre-marital assets. If you do choose to enter into a nuptial agreement before or after marriage, it must be drafted with legal accuracy, concisely explain your agreement regarding pre-marital assets, and be made legally valid. If not, there is a strong chance that the prenup or postnup can be contested and then disregarded by a judge.
