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Pre-acquired assets

by Teelan & Silwal

What’s mine is mine?

When a client comes to see us for the first time, there are of course many questions they would like answered and concerns to be addressed and soothed. In some instances, a client may be particularly eager to know what will happen to assets that they owned prior to the marriage.

The starting point is to state that such assets are described as non-matrimonial assets. These are assets that one party acquired prior to the marriage, for example, by way of inheritance, gifts or assets saved prior to marriage.

Will a client be able to ‘ringfence’ those assets during the financial process to ensure that they get to keep any inherited property or the financial rewards of years of hard work before they married? The simple answer to that question is, unfortunately, that there is no simple answer. Each case must be determined on its own merits.

When seeking to resolve financial matters between a couple, financial disclosure must first be provided. It is during this stage that it will become clearer which assets are regarded as matrimonial assets, namely any assets acquired during the marriage, or which assets may fall into the non-matrimonial asset category.

The Court will then have to consider what is to happen to the non-matrimonial assets. Meeting the parties’ needs (for example, for housing) is the overriding principle the Court will want to satisfy. If a party’s needs can be fulfilled from the available matrimonial assets, then the non-matrimonial assets may remain with the person who acquired them.

If, however, it is not possible for needs to be met, then the Court will take into account any non-matrimonial assets in order to ensure that the parties’ needs are met. Other factors will also become relevant when considering this issue though. When an asset was acquired and the extent to which it was kept separate from matrimonial property, may also be relevant factors for the Court to consider. In addition, the Court may look to the parties’ lifestyle and the extent to which any pre-martial wealth was utilised during the marriage. The Court may determine that the assets became so intermingled that it is impossible to distinguish one type of asset from another. The length of the marriage will also be a factor for consideration, as the pre-acquired asset may have lost its importance over time.

There is no doubt that careful consideration must be given when pre-acquired assets are identified. As previously stated though, if such assets are required in order to meet a party’s needs, then the Court will have no hesitation in looking to those pre-acquired assets to help meet a party’s financial settlement.

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