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Divorce and inheritance – what are you entitled to?

It is sometimes said that divorce and death form some of the most contentious subject matters that the courts have to deal with. It’s not surprising that the worst combination can be when we’re faced with divorcing couples arguing over the distribution of a loved one’s estate.

Ross Coates Solicitors, a firm with real experience in this area of law, has kindly put together some information designed to provide an insight as to how the courts tend to deal with inherited property in the context of a divorce.

They have also offered some practical solutions to avoid the expense litigation that sometimes follows.

How should the assets be divided?

One of the first issues to establish, when dealing with inherited wealth, is whether we’re dealing with property that is within the marital pot - in other words, assets that would not normally be open for sharing as part of the divorce settlement.

The short answer would be to say that non-matrimonial property is that which was owned by either party before the marriage commenced, or after it ended.

However, like so much in matrimonial law, this would not serve as a ‘one size fits all’ answer. Nicholas Mostyn QC (sitting as Deputy High Court Judge said in the case of Rossi v Rossi [2007] 1 FLR 790) said:

“Non-matrimonial property is not quarantined and excluded from the court’s dispositive powers… The court will decide whether it should be shared and, if so, in what proportions.  In so deciding it will have regard to the reality that the longer the marriage the more likely non-matrimonial property will become merged or entangled with matrimonial property. By contrast in a short marriage case non-matrimonial assets are not likely to be shared unless needs require it.”

Crucial points of matrimonial property to understand

This leaves us a number of realisations in what would otherwise be a very simple and easy-to-follow principle of defining non-matrimonial property. It is important to be aware of these principles, and they are as follows:

  • All assets are potentially up for grabs in the context of a divorce, whether it is non-matrimonial or matrimonial. However, this does not necessarily mean that non-matrimonial property will be shared in the same portions as matrimonial property
  • Non-matrimonial property can very easily turn into matrimonial property by merging and entangling the two. This could, for example, be done by placing money into a joint account, purchase of the matrimonial home or simply treating an asset as if it was jointly owned
  • The longer your marriage, not surprisingly, the more likely it is that assets will become merged and entangled
  • Even if your non-matrimonial property has not ‘merged’, the court has the power to redistribute it if the needs of the case demand this. The typical example that we might see would be in a case in which it is decided that the husband or wife needs to be safely and securely housed, and the only way this can be done is by a redistribution of what would otherwise be non-matrimonial property. This would be particularly so if there were children of the marriage to consider

Is this everything you need to know?

There are many more considerations to think about when dealing with divorce and inheritance, and this article is not intended to cover all eventualities and situations. Anyone contemplating marriage or divorce should seek independent and tailored legal advice.

In an attempt to avoid future litigation over these issues many people enter into pre- or post-nuptial agreements, before or during their marriage. Whilst there can be no guarantee of such instruments being upheld by the courts, a well-drafted document can be very persuasive and would probably avoid the need to go to court in the first place.

Would you like more information?

This article on matrimonial law has been kindly offered by Tom Clements, a family law specialist, of Ross Coates Solicitors. If you’d like more information about your particular situation, you can visit their website, www.rosscoates.co.uk, and contact Tom who will be happy to have a short conversation with you.

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