Trainee family solicitor, Bronwyn Jenkins, takes a look at the issues surrounding inheritance and divorce.
Inheritance within divorce can often be a point of contention between parties, with many believing their inheritance should be ring-fenced and protected from their spouse. The issue is whether the inheritance is a Matrimonial asset or is a Non-Matrimonial asset.
Each divorce is decided on a case-by-case basis with the courts giving weight to the facts and circumstances of each case. That said, under the Matrimonial Causes Act 1973, the first thing that the courts will look at is the needs of each party.
If the reasonable needs of the parties cannot be met from matrimonial assets, that is, assets acquired during the marriage from the joint effort of both parties, the courts will turn to non-matrimonial assets. Non-matrimonial assets are those that have accrued outside of the marriage and can include inheritance and assets brought into the marriage at the outset.
Many believe that non-matrimonial assets should not be brought into divorce proceedings. However, it is a principle of English Law that you cannot leave your spouse ‘high and dry’ and if there is not enough to go around, the courts will consider inheritance to ensure that both parties can move forward having their reasonable needs met.
So, whilst there are no guarantees when it comes to ring-fencing your inheritance, an inheritance to one party is not an inheritance to both so if the inheritance has not been left to your spouse, why should they benefit?
Indeed, once both of the parties’ reasonable needs have been met, the courts will look at other factors when determining how to divide assets such as the length of the marriage and how the property is held. For example, if the inheritance has been kept in the sole name of the party inheriting the assets and not used to the benefit of the couple, the court may be more likely to see it as a non-matrimonial asset.
If you received an inheritance after separation, then it is more likely to be ringfenced as clearly not accrued or derived during the marriage.
Under English Law, divorcees are allowed to make a claim against their ex-spouse’s assets even after divorce unless you are the respondent in the divorce and you re-marry, or the court formally order a dismissal of claims.
As such, divorce solicitors will always recommend you have a full and final settlement which will usually include a dismissal of claim unless it is in your interest to keep your claims against your spouse open. If you have an agreement with your spouse as to how to divide the assets or even if you do not wish to make any claims, consider having a financial order often referred to as a “Consent Order” as it is sent to the court with the consent of the parties. This can provide for a full dismissal of claims and make sure that future inheritance, or maybe a lottery win are protected!
As with all financial matters, it is advisable to consult a professional to ensure you get the appropriate advice. Holmes & Hills have an experienced team of family lawyers who regularly advise on financial orders. If you have any queries regarding obtaining a financial order, then our Family Law solicitors at Holmes & Hills would be delighted to assist.
Call 01206593933 and ask to speak to a specialist divorce lawyer. Or complete the form below.
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