- Matrimonial
assets have been generated during the marriage,
are in the parties' joint names or have been a
matrimonial home i.e. one in which the family
have lived during the marriage.
- Non-matrimonial
assets are those acquired pre-marriage and,
sometimes, post-marriage and inherited assets if
they have not been mingled with matrimonial
assets and they are not needed to meet the
parties' needs.
The court will start at a point of sharing
the matrimonial assets 50/50. If both parties' needs are
met from a 50% share of the matrimonial assets, then
non-matrimonial assets can be retained by the party to
whom they belong.
- "Needs"
- if the parties do not have enough assets to
meet their housing and other capital needs then
those needs will trump any 'sharing' arguments.
Non-matrimonial assets may have to be divided to
meet needs or one party may get a larger portion
of the assets because their mortgage capacity is
smaller.
- The strand of "compensation"
is rarely argued in court because it is difficult
to prove that there has been a
relationship-generated disadvantage to one party
meaning they should be compensated. The leading
case is McFarlane, in which it was found
that Mrs McFarlane, who had been a solicitor and
had given up her career to raise the parties'
children, ought to be compensated. If successful,
compensation might be reflected by the level of
maintenance awarded.
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