The courts have no authority over non-marital property
. So, the first thing the court has to do is determine whether they have authority over marital property. Generally speaking, all property acquired by either spouse before the marriage is considered non-marital property. All property acquired after the marriage is considered property of the marriage or marital property
. If the property is marital property
then the court must “equitably” divide the property
If you wish to keep separate, your property from your spouse's property safeguards should be put into place to make sure that each retains ownership of their individual property. For example, if you own a home and marry, the only way to keep that home from becoming marital property is to make sure your spouse makes no financial investment in the home.
Property Is Presumed To Be Marital Property Except For:
Property acquired by gift, legacy or descent.
Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent.
Property excluded by valid agreement of the parties.
Any judgment or property obtained by judgment awarded to a spouse from the other spouse.
Property acquired before the marriage.
When marital and non-marital property has been combined the process of determining marital property
can be quite complicated. For example, what happens when one spouse uses non-marital property
such as an inheritance to buy a house with the other spouse? What happens when one spouse inherits money and that money is put in a joint bank account?
The Matrimonial Causes Act 1973 (which is under review) provides for equitable sharing of property, pensions etc but is a) subject to precedents and b) leaves most of the decision up to the judge concerned.
24 Property adjustment orders in connection with divorce proceedings, etc.
(1)On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may make any one or more of the following orders, that is to say—
(a)an order that a party to the marriage shall transfer to the other party, to any child of the family or to such person as may be specified in the order for the benefit of such a child such property as may be so specified, being property to which the first-mentioned party is entitled, either in possession or reversion;
(b)an order that a settlement of such property as may be so specified, being property to which a party to the marriage is so entitled, be made to the satisfaction of the court for the benefit of the other party to the marriage and of the children of the family or either or any of them;
(c)an order varying for the benefit of the parties to the marriage and of the children of the family or either or any of them any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the parties to the marriage [F35,other than one in the form of a pension arrangement (within the meaning of section 25D below)];
(d)an order extinguishing or reducing the interest of either of the parties to the marriage under any such settlement [F35, other than one in the form of a pension arrangement (within the meaning of section 25D below)];
subject, however, in the case of an order under paragraph (a) above, to the restrictions imposed by section 29(1) and (3) below on the making of orders for a transfer of property in favour of children who have attained the age of eighteen.
(2)The court may make an order under subsection (1)(c) above notwithstanding that there are no children of the family.
(3)Without prejudice to the power to give a direction under section 30 below for the settlement of an instrument by conveyancing counsel, where an order is made under this section on or after granting a decree of divorce or nullity of marriage, neither the order nor any settlement made in pursuance of the order shall take effect unless the decree has been made absolute.
Annotations: Help about Annotation
F35Words in s. 24(1)(c)(d) inserted (11.11.1999 for certain purposes and otherwise 1.12.2000) by 1999 c. 30, s. 19, Sch. 3 para. 3; S.I. 2000/1116, art. 2
[F3624A Orders for sale of property
(1)Where the court makes under section 23 or 24 of this Act a secured periodical payments order, an order for the payment of a lump sum or a property adjustment order, then, on making that order or at any time thereafter, the court may make a further order for the sale of such property as may be specified in the order, being property in which or in the proceeds of sale of which either or both of the parties to the marriage has or have a beneficial interest, either in possession or reversion.
(2)Any order made under subsection (1) above may contain such consequential or supplementary provisions as the court thinks fit and, without prejudice to the generality of the foregoing provision, may include—
(a)provision requiring the making of a payment out of the proceeds of sale of the property to which the order relates, and
(b)provision requiring any such property to be offered for sale to a person, or class of persons, specified in the order.
(3)Where an order is made under subsection (1) above on or after the grant of a decree of divorce or nullity of marriage, the order shall not take effect unless the decree has been made absolute.
(4)Where an order is made under subsection (1) above, the court may direct that the order, or such provision thereof as the court may specify, shall not take effect until the occurrence of an event specified by the court or the expiration of a period so specified.
(5)Where an order under subsection (1) above contains a provision requiring the proceeds of sale of the property to which the order relates to be used to secure periodical payments to a party to the marriage, the order shall cease to have effect on the death or re-marriage of [F37, or formation of a civil partnership by,]F37 that person.
[F38(6)Where a party to a marriage has a beneficial interest in any property, or in the proceeds of sale thereof, and some other person who is not a party to the marriage also has a beneficial interest in that property or in the proceeds of sale thereof, then, before deciding whether to make an order under this section in relation to that property, it shall be the duty of the court to give that other person an opportunity to make representations with respect to the order; and any representations made by that other person shall be included among the circumstances to which the court is required to have regard under section 25(1) below.]]
Annotations: Help about Annotation
F36S. 24A inserted by Matrimonial Homes and Property Act 1981 (c. 24, SIF 49:5), s. 7
F37Words in s. 24A(5) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), ss. 261(1), 263, Sch. 27 para. 42; S.I. 2005/3175, art. 2(2) (subject to art. 2(3)-(5))
F38S. 24A(6) added by Matrimonial and Family Proceedings Act 1984 (c. 42, SIF 49:3), ss. 46(1), 48(3), Sch. 1 para. 11
Modifications etc. (not altering text)
C5S. 24A(2)(4)(5)(6) extended by Matrimonial and Family Proceedings Act 1984 (c. 42, SIF 49:3), ss. 21(b), 48(2)