If you are about to get married, or are in the middle of a divorce, you need to know about matrimonial property. This is the term used for any property that is acquired by a couple during their marriage. In most cases, both spouses have an equal ownership stake in matrimonial property. However, there are some exceptions to this rule. In this blog post, we will discuss what you need to know about matrimonial property and how it is divided during a divorce.
What is matrimonial property?
Matrimonial property is any property that is acquired by a couple during their marriage. This includes both assets and debts. In most cases, both spouses have an equal ownership stake in matrimonial property. However, there are some exceptions to this rule. For example, if one spouse inherits money or property from a third party, that spouse may be the sole owner of that asset.
How is matrimonial property divided during a divorce?
In most cases, matrimonial property is divided equally between the spouses. However, there are some exceptions to this rule. For example, if one spouse contributed more to the acquisition of matrimonial property than the other spouse, that spouse may be entitled to a larger share of the property. Additionally, if one spouse is ordered to pay child or spousal support, that spouse may receive a smaller share of matrimonial property.
What constitutes matrimonial property?
Matrimonial property is any property that is acquired by a couple during their marriage. This includes both marital and non-marital property. Marital property is any property that was acquired by either spouse during the marriage. This can include assets such as real estate, vehicles, bank accounts, and retirement accounts. Non-marital property is any property that was acquired by one spouse prior to the marriage or that was inherited or gifted to one spouse during the marriage.
In most cases, both spouses have an equal ownership stake in matrimonial property. However, there are some exceptions to this rule. For example, if one spouse inherits a large sum of money or acquires a valuable asset after getting married, they may be considered the sole owner of that property.
What is not matrimonial property?
Property Acquired Before the Marriage
Property that is acquired prior to the marriage is not considered matrimonial property. This includes assets such as real estate, vehicles, bank accounts, and retirement accounts. In most cases, these assets will remain with the spouse who acquired them.
Property Received as a Gift or Inheritance
Property that is received as a gift or inheritance is also not considered matrimonial property. This includes assets such as real estate, vehicles, bank accounts, and retirement accounts. In most cases, these assets will remain with the spouse who received them.
However, there are some exceptions to this rule. For example, if one spouse inherits a large sum of money or acquires a valuable asset during the marriage, it may be considered matrimonial.
What happens to Matrimonial Assets When a Couple Divorces?
This is a question that many couples are asking as they go through the divorce process. matrimonial assets are generally divided equally between the spouses.
Exceptions
For example, if one spouse contributed more to the marriage than the other, they may be awarded a larger share of the matrimonial property.
Another exception applies when one spouse inherits or receives a gift of property from someone other than their spouse. In this case, the receiving spouse would typically be awarded sole ownership of that asset.
What Happens to Non-Matrimonial Property When a Couple Divorces?
Non-matrimonial property is any property that was acquired by one spouse prior to the marriage. This property is not subject to division during a divorce.
For example, if one spouse owned a home before getting married, that home would be considered non-matrimonial property and would not be divided between the spouses in the event of a divorce.
However, it’s important to note that any increase in the value of non-matrimonial property during the marriage is typically considered matrimonial property and will be divided accordingly.
What will the courts consider when deciding how matrimonial and non-matrimonial assets should be divided?
The court will consider the following factors when making a decision about how matrimonial and non-matrimonial assets should be divided:
The length of the marriage
The longer the marriage, the more likely it is that the court will view matrimonial property as being jointly owned by both spouses.
The financial contribution of each spouse during the marriage
The court will consider the financial contributions of each spouse during the marriage when making a decision about matrimonial property. This includes things like who paid for the mortgage, contributed to savings, and so on.
Non-Financial Contribution of Each Spouse
The court will also consider the non-financial contributions of each spouse during the marriage. This includes things like taking care of the home and children, contributing to the marriage in non-monetary ways, and so on.
The needs of each spouse
The court will also take into account the needs of each spouse when making a decision about matrimonial property. For example, if one spouse has young children and the other does not, the court may give more weight to the needs of the spouse with young children.
The standard of living during the marriage
The court will look at the standard of living that was enjoyed by the couple during their marriage when making a decision about matrimonial property. The court therefore will be careful not to condemn on party to poverty and suffering by dint of the divorce.
The age and health of each spouse
The age and health of each spouse will also be considered by the court when making a decision about matrimonial property.
The earning capacity of each spouse
The court will consider the earning capacity of each spouse when making a decision about matrimonial property. This includes things like education, skills, and experience.
The future needs of each spouse
The court will also take into account the future needs of each spouse when making a decision about matrimonial property. For example, if one spouse is likely to need more money in the future because they have young children or health problems, the court may give them a larger share of the matrimonial property.
The needs of any children of the marriage
The court will also take into account the needs of any children of the marriage when making a decision about matrimonial property.
The court will consider all of these factors when making a decision about how matrimonial and non-matrimonial assets should be divided. However, the court will not necessarily divide matrimonial property equally between the spouses. The court will decide what is fair in each individual case.
How Can I Protect My Assets in case of a Divorce?
There are a few ways to protect your assets from being divided during a divorce.
Pre Nuptial Agreement
If you want to be sure that your assets remain yours in the event of a divorce, you can sign a pre nuptial agreement. This is a legal contract that outlines how your assets will be divided in the event of a divorce. You and your spouse will need to agree on the terms of the agreement before you get married.
How Long can a Prenuptial Agreement Last?
A prenuptial agreement can last for as long as you want. However, if you want the agreement to be enforceable, it must be in writing and signed by both spouses.
What assets can be included in a Prenuptial Agreement?
You can include any assets that you own in a prenuptial agreement. This includes things like property, savings, investments, and so on.
Can I change my Prenuptial Agreement?
Yes, you can change your prenuptial agreement at any time. However, any changes that are made must be in writing and signed by both spouses.
What if my spouse doesn’t want to sign a Prenuptial Agreement?
If your spouse doesn’t want to sign a prenuptial agreement, you can still get married. However, you should be aware that without an agreement, your assets will be subject to division if you get divorced.
Enforceability of a Prenuptial agreement
A prenuptial agreement is only enforceable if it is in writing and signed by both spouses. If either spouse doesn’t sign the agreement, it will not be enforceable.
Can a Prenuptial Agreement be Set Aside?
Yes, a prenuptial agreement can be set aside by a court. However, this is usually only done in exceptional circumstances. For example, if one spouse was forced to sign the agreement or if the terms of the agreement are unfair.
The legality of prenuptial agreements
Prenuptial agreements are legal in most countries. However, there are some exceptions. For example, prenuptial agreements are not legally binding in Australia and New Zealand. It is therefore advisable to confirm the legality of prenuptial agreements in your country before you sign one.
Keep Your Assets Separate
Another way to protect your assets from being divided during a divorce is to keep them separate from your spouse’s assets. This means that you should have your own bank account, own property in your own name, and so on.
Separation Agreement
If you are already married but would like to protect your assets from being divided during a divorce, you can sign a separation agreement. This is also a legal contract that outlines how your assets will be divided in the event of a divorce.
Putting Assets in Trust
Another way to protect your assets from being divided during a divorce is to put them in trust. This means that you will no longer own the assets outright, but that they will be held in trust for your benefit.
This therefore legally alienates your property from matrimonial assets and your spouse will not be able to claim them in the event of a divorce.
Records of All Personal Assets
It is important to keep records of all your personal assets, including any property that you owned before marriage. This will help to prove that these assets are separate from matrimonial property and should not be divided during a divorce.
How to Have Divorce and Matrimonial Property the Conversation With Your Future Spouse
Statistics indicate that thirty percent of marriages end up in a divorce. Therefore, the divorce and matrimonial property conversation is an important one to have with your future spouse.
This conversation can help you to understand each other’s expectations about matrimonial property and can help to prevent any conflict in the future.
It is also important to consult with a lawyer to discuss your options for protecting your assets in the event of a divorce. They can advise you on the best way to protect your interests and make sure that your rights are protected.
Conclusion
However much divorce is not the intended outcome in every wedding, it is still a reality that many face. It is important to be prepared for this eventuality by having an understanding of matrimonial property and how it can be divided in the event of a divorce.
Matrimonial property can be a complex issue, especially if you are going through a divorce. However, it is important to understand your rights and how to protect your assets. This blog post has outlined some of the key things that you need to know about matrimonial property. If you have any further questions, please consult with a lawyer.
This blog post is intended as general information only and should not be taken as legal advice. You should always consult with a lawyer for specific legal advice tailored to your situation.