These starting points may be departed from; in particular, a court may 'invade' a party’s non-matrimonial assets to meet the needs of the other party or any children, or to meet the terms of a nuptial agreement.
Further – and of particular relevance in this case – non-matrimonial property can become 'matrimonialised' over the course of a marriage through being mingled with matrimonial resources.
Matrimonialised assets should usually be shared, to some extent at least, with the other party.
In this case it was clear that the funds generated by the husband’s endeavours during the marriage were matrimonial and should be shared equally.
The debate focused on the other assets: the wife’s family assets and the assets the husband had prior to the marriage, which he contended were worth $10m (he was originally from the US).
While the wife’s family assets had been kept separate from the family’s other resources (they had, in the words of the judge, been “ring-fenced”), the husband’s premarital wealth had, like the wealth he generated during the marriage, been applied towards the family’s outgoings and the acquisition of family assets.
In the words of the judge, Mrs Justice Roberts: “The conundrum in this case as this very long marriage now ends is how the court should fairly reflect in its award the different way in which the parties managed their wealth from the outset”.
The judge went on to identify two factors that must be present for non-matrimonial assets to become matrimonialised.
First, they must have been physically “mingled” with the family’s other resources (including, for example, through the purchase of the family home or other assets used by the whole family, or investment in a joint account).
Second, the owning party must have “through words, actions or deeds manifested an acceptance” that the assets should be treated as matrimonial.
It was clear that the husband’s pre-marital assets (as well as the proceeds of sale of a property the wife had owned at the outset of the parties’ relationship) had been fully mingled with the family’s other assets and were no longer distinguishable from them; as a result, they had lost their non-matrimonial character.
By contrast, £1.7m that the husband had inherited towards the end of the marriage and kept separate was held to be non-matrimonial.
The wife’s family assets had “remained separate and segregated from the wider family finances” throughout the marriage.
She had not dipped into the capital because she considered the funds family money, to be preserved and passed down through the generations.
The husband accepted that there had never been an understanding between the parties that he should acquire an interest in these assets.
