Tom is a specialist financial remedy practitioner. He is available to advise in conference and represent parties both via solicitors and in appropriate cases direct access.
In this article he discusses some of the circumstances in which you might persuade the court to treat the Former Matrimonial Home as a non-matrimonial asset.
For specialist advice and representation contact clerks@orielchambers.co.uk.
Practitioners are very familiar with the distinction to be drawn between matrimonial and non-matrimonial assets. Arguments are often raised that a particular asset should be weighed more lightly or even excluded completed due to its source. It is well-recognised that the sharing principle, whereby assets built during the course of and as a consequence of the matrimonial partnership are shared, “applies with force to matrimonial property and with limited or no force to non-matrimonial property.” (Hart v Hart [2017] EWCA Civ 1306). It is therefore often worth trying to persuade the court that high value assets, acquired pre- or post-marriage, should be noted but not included centrally in the section 25 exercise.
Parties often expend considerable cost and energy arguing about whether certain assets are matrimonial in nature. However, more often than not, the Former Matrimonial Home is excluded from that argument. Inasmuch as some litigants will plead with their representatives (“I bought the house, why should they benefit?”), lawyers will rightly refer their clients back to White v White [2000] UKHL 54: there is to be no “discrimination between the husband and the wife and their respective roles.” The FMH has long occupied a unique place within the marital relationship.
Such a position will be difficult to overcome in a long marriage case. What of the short or even medium length marriage? Is there any scope to have the Former Matrimonial Home labelled as a non-matrimonial asset? There are in fact circumstances in which a party can leverage a departure from the sharing principle as regard the FMH.
DE v FE [2022] EWFC 71 (Cohen J) concerned a couple in their forties, who separated following a 13 year marriage. The FMH was pre-acquired by H. The parties cohabited in that property for no more than 18 – 24 months before moving to West London and letting it out. W sought to persuade the judge that the property had been matrimonialised by virtue of their cohabitation and her subsequent management of the letting. Cohen J found a “genuine but small” matrimonial element and treated 30% of the value as matrimonial.
In AD v BD [2020] EWHC 857 (Fam) (Cohen J), the parties were both in their thirties at trial. H’s family was extremely wealthy, with his father having purchased homes for each of his children. He purchased the FMH following the marriage. Both parties were equal contributors to the marriage, insofar as they were both high earners. Cohen J determined that the FMH would not be wholly subject to sharing, having regard to a number of factors, including:
- The FMH was the first property owned by the parties, and purchased only 3 years pre-separation;
- The purchase price came wholly from H’s father rather than H himself.
Against that, and in W’s favour, he noted:
- At 8 years, it was not a short marriage; and there were two children of the family;
- H’s proposal was essentially for a Mesher whereby the children would remain in the FMH for some 17 years.
Taking account of those matters, he treated 40% of the FMH as being a matrimonial asset.
In conclusion, the division between matrimonial- and non-matrimonial property can often be artificial. This is particularly so in low asset cases where parties are likely to regress to need. However, there is no good reason to simply accept and treat as dogma the proposition that the FMH is to be viewed entirely as matrimonial property. Features such as pre-acquisition, length of cohabitation, and source of funds are all likely to be relevant.
