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Are Non-matrimonial assets always ring-fenced?

Date posted: 28 June 2021

WX v HX (Treatment of matrimonial and non-matrimonial property) [2021] EWHC 241 (Fam)

 

This case concerned a marriage of 33 years, with the parties both in their 60s. They had 4 adult children (one deceased). The wife was a homemaker and the husband a very successful businessman from a wealthy, successful family, who himself made a significant contribution to the marriage via wealth creation. They had a high standard of living and they benefitted from the husband’s status as a non-domiciled UK resident, in terms of tax-efficient planning and off-shore wealth. The total asset pool was found to be approximately £55 million.

 

Issues were raised regarding which assets were to be regarded as matrimonial and non-matrimonial property. There were two homes, in London and Oxfordshire, respectively valued at £13m and £10m. The predominant beneficiaries of the offshore trusts (50 million USD) were the children and grandchildren. The wife had inherited wealth of £14m, which the husband managed on her behalf in his role as a financial investment manager. The wife wished to ring-fence the inherited assets.

 

Judge Roberts of the Family Division, identified the matrimonial assets as being worth approximately  £38.8 million.  She held that the husband should transfer his interest in the London property to the wife, and pay her a lump sum of just under £6.50 million on a clean break basis.

 

The following principles were stated:

 

  • The fact assets derive from a source outside of marriage (pre-owned assets, inheritance), does not lead automatically to their exclusion from the court’s consideration, when considering a fair outcome. It is a factor that the Judge should take into account.
  • The court will treat contributions by each party as broadly equal, even if different in kind;
  • Each case must be considered on its own facts and an assessment of fairness. The Judge needs to consider whether the existence of the property is reflected in outcome at all. This many depend on the extent of mingling with matrimonial property and over what length of time. Some cases have ring-fenced assets.
  • Matrimonial assets will fall under the sharing principle and be divided equally. Matrimonial property is recognised as `being property which is the product of, or reflective of, marital endeavour or generated during the marriage otherwise than by external donation’.
  • The sharing principle only impacts on matrimonial property, not non-marital assets.
  • The sharing principle will not always lead to equal division arithmetically. Risk and liquidity can impact on this.

 

The wife’s non-matrimonial property was preserved as a separate asset and had not become `matrimonialised’ as a result of the husband managing the fund/assets as an investment manager. It is felt this finding may give rise to some debate amongst practitioners.

 

In this case the needs of both parties were well met from the matrimonial assets. Had they not, then a needs award from non-matrimonial property may have been considered. An order to simply share non-marital assets, over and above meeting needs, however is a very unlikely one.

 

We specialise in providing advice and representation in matrimonial and financial order proceedings. Please contact our Patricia Beckett at p.beckett@wilsonllp.co.uk for more details, or to arrange for an appointment, please call Mavis on 020 8885 7986