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WHAT’S MINE IS MINE! – THE NEED FOR PRE-NUPTIAL AGREEMENTS

A comprehensive but complex body of case law has now been built up to deal with how to divide up assets acquired before marriage, and inheritance and gifts received during the marriage, following divorce. The current tools available to Judges, mediators and arbiters are the provisions under s.25 Matrimonial Causes Act 1973, imprecise notions of equity and parties’ consent; and in rare cases, the terms of any pre-nuptial agreement.

The current starting point is that the so-called ‘matrimonial estate’ (the combined ‘pot’ of assets owned by each party to a marriage) consists of everything (no matter when acquired) and is to be equally shared, ‘the first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen’. This point is a frustrating, if somewhat esoteric one for lay clients to understand, much less accept. Their starting point is very often, “what’s mine, is mine, and I’ll do what I want with it!” or words to that effect. Very little comfort, if any, is taken from the fact that the matrimonial estate is based upon rebuttable presumptions. Nor  do they necessarily  have much faith in the Judge’s (or anyone else’s!)  ability to stir the pot, like a sorcerer concocting a magical potion, and come out with a division of assets that is just and equitable. Or indeed a division which meets with their approval, which is perhaps a more pertinent, but subtly different point.

The jury really is out on whether the current provisions inevitably or largely lead to unfairness. There are legitimate arguments on either side. However there is currently a Bill  before Parliament (the Divorce (Financial Provision Bill 2016- 2017)), which if enacted,  will exclude pre-owned assets, inheritance and gifts from the matrimonial estate on divorce. Watch this space, as they say!

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