When a marriage breaks down, before parties can decide how to split their finances, it is necessary for each party to declare all their assets including any inherited assets.
The starting point is that all the assets are joint assets and form part of the matrimonial pot to be divided. Inherited assets are NOT automatically excluded. Whether the inheritance is considered matrimonial or non-matrimonial will depend on the individual circumstances of the marriage.
Things to consider would be:
- Needs
In most financial remedy matters, the concern will be whether each parties needs can be met with the resources available. If needs can be met without recourse to the inherited assets (needs being interpreted generously according to the standard of living the parties enjoyed before separation) then it may be the case that the inherited assets can be considered non-matrimonial (although see below regarding mingling of inheritance).
- How the inheritance was used – Mingling
If the money/ assets have been kept separate rather than being used for the family, then there is cause to argue that it is non-matrimonial and should be kept by the party who inherited it (subject to needs as explained above). However, where the inherited asset/money has been used for the family then it is more likely to be considered part of the matrimonial pot to be divided.
- The length of the marriage
In longer marriages, it is more likely that the inherited assets would have become merged, but in shorter marriages, inherited assets are unlikely to be shared unless ‘needs’ dictate it.
- When the inheritance was received
Where an asset was acquired pre-marriage or post-separation, there may be room to argue that it is non-matrimonial, however, this is case specific.
Worried about protecting your inheritance?
If not yet married, consider entering into a prenuptial agreement or if already married, consider entering into a postnuptial agreement. Please contact our Family team for more information.