Upon divorce, am I entitled to any property owned before the marriage?
Spouses sometimes come into a marriage owning property. As family law experts, we are often asked whether this property is matrimonial and how it will be treated as part of any financial settlement upon divorce. Below I summarise the key principles which may be relevant to your divorce.
The short answer is, it depends.
In some cases, it can be argued that the spouse with the pre-owned property has made an unmatched contribution and therefore they should be entitled to ring-fenced the proceeds of sale for their own benefit.
Whether a court would accept this, however, will depend on a number of inter-linked factors such as whether it has been: –
a. Mixed with matrimonial money.
For example, how has any mortgage on the property been paid, has any rental income from an investment property been shared such as being spent on family outgoings?
b. Treated as a joint matrimonial asset.
This will be a question of fact, looking at the way the parties have treated the property.
c. Excluded from the matrimonial pot and treated wholly separately through the marriage.
For example, in respect of a rental property, has the income earned been entirely re-invested into that property?
d. The overall circumstances of the case.
Are there sufficient assets in the case which enable the property to be ring-fenced while both parties’ needs are met? How are the other assets intended to be divided between the parties?
What happens to the Family Home in Divorce?
As a general principle, the family home is considered to have central importance in any marriage. As a result, it is usually considered matrimonial irrespective of how it was originally acquired.
It is important to understand, however, that each case is entirely fact specific and how property should be treated in any one case will depend on a multitude of different circumstances.
If you are considering how any property should be divided upon divorce, we would strongly recommend that you speak to one of our family law experts as soon as possible.
