The Law on Matrimonial Assets

The Law on Non-Matrimonial Assets

Section 25 of the Matrimonial Causes Act 1973 provides an extensive preference to the court in order to make the decision regarding the financial remedy cases[1]. The overall objective is to be fair. In the light of the decision made by the House of Lords in White [2001] 1 AC 596, fairness is required to be measured by the index of equality; whereas, in theory, it must not be considered as the initial point or presumption, however; today it has become a thing that is near the initial point particularly with regards to the matrimonial property[2]. Henceforth, it is significant to make a distinction between the matrimonial property and the non-matrimonial property.

Matrimonial property involves the assets which have been appeared in marriage by the mutual efforts of the parties. On the other hand, the non-matrimonial property involves the extra matrimonial property that might involve inheritances and gifts that have been attained by one of the parties within the marriage[3]. Whereas the presence of the non-matrimonial property has also been considered to result in removing the equity. There have been very important caveats towards it involving that in case the inheritance has becoming the matrimonial property in an effective manner due to the reason, for instance, the intentions and actions of the parties, the merger of the funds and also by having different perception regarding the degree to which the distinction is certain[4].

The idea of mixing of funds, period and the accustoming of the family with benefitting from the inheritance, are all considered to lead towards becoming the matrimonial assets. This has also been supported by Miller [2006] 1 FLR 1186 HL[5]. It has also become accepted that the expressed or implied intention of the parties and the way they treat the assets over some time can also have similar impacts. For example, in case the inheritance is used for aiding the wife as well as family, it can be implied that the husband is aimed towards making it a matrimonial property[6].

The non-matrimonial property is further subdivided either completely or through the application of distinctive and non-equal division. It has been found that there are two persuasions; the first is related to the simple adjusting the complete percentage for reflecting the presence of the non-matrimonial property; and the second one is related to the exclusion of the non-matrimonial property and leaving the remaining to be divided in an equal manner[7]. Therefore, within one view, the Court does not restrict the inherited property, however, it treats it as the unmatched contribution and the make decision regarding the percentages on the basis of all of the combined factors. Whereas; with regards to the other view; the non-matrimonial property is not included in the equation[8].

 

The idea of the property being matrimonial or non-matrimonial is considered as the legal construct and it is also a construct that is always not capable of having clear identification which makes it an open area towards argument.

  Please do not hesitate to contact us to speak to a team member who specialises in this field.

 

By Lenny Phiri

Paralegal

 

Biblography

Dutta, A., Regulations, M.P. & FRANZINA, P., 2017. Matrimonial property regimes in European Private International Law. Beyond husband and wife–new couple regimes and the European Property Regulations, Yearbook of Private International Law (YPIL), p.145.

Franzina, P., 2018. Jurisdiction in matters relating to property regimes under EU private international law.

House of Lords, 2000. Judgments – White White v. White. [Online] Available at: https://publications.parliament.uk/pa/ld199900/ldjudgmt/jd001026/white-1.htm [Accessed 16 March 2020].

House of Lords, 2006. Judgments – Miller (Appellant) v. Miller (Respondent) and McFarlane (Appellant) v. McFarlane (Respondent). [Online] Available at: https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd060524/mill-1.htm [Accessed 16 March 2020].

legislation.gov.UK, 2020. Matrimonial Causes Act 1973. [Online] Available at: http://www.legislation.gov.uk/ukpga/1973/18/section/25 [Accessed 16 March 2020].

Schuz, R., 2019. Choice of law in relation to matrimonial property in the 21st century. Journal of Private International Law, 15(1), pp.1-49.

Van Wingerden, S. & Van Wingerden, S.A., 2016. The women’s suffrage movement in Britain, 1866-1928. Springer.

 

 

[1] Legislationgovuk,, ‘Matrimonial Causes Act 1973’ (LegislationgovUK,, 1973) <http://www.legislation.gov.uk/ukpga/1973/18/section/25 > accessed 16 March 2020

[2] House of lords, ‘Judgments – White White v White ‘ (House of Lords, 2000) < https://publications.parliament.uk/pa/ld199900/ldjudgmt/jd001026/white-1.htm > accessed 16 March 2020

[3]  A, Dutta, and others, ‘ Matrimonial property regimes in European Private International Law ‘ [2017.] 3(1) Beyond husband and wife–new couple regimes and the European Property Regulations, Yearbook of Private International Law (YPIL) 145.

[4] P, Franzina,, Jurisdiction in matters relating to property regimes under EU private international law ( 2018)

[5] House of lords, ‘Judgments – Miller (Appellant) v Miller (Respondent) and McFarlane (Appellant) v McFarlane (Respondent)’ (House of Lords, 2006) <https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd060524/mill-1.htm > accessed 16 March 2020

[6] R, Schuz, , ‘Choice of law in relation to matrimonial property in the 21st century’ [2019] 15(1) Journal of Private International Law, 1-49.

[7]  ibid

[8] S Van wingerden, and SA Van wingerden, , The women’s suffrage movement in Britain, 1866-1928 (Springer 2016)

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