Upon a married couple’s
separation, issues frequently need to be resolved in relation to the parties’
financial affairs. In general, the Courts here in Northern Ireland tend to draw
a distinction between those assets which have been accrued during the marriage
by the parties’ joint endeavours, frequently referred to as ‘matrimonial
assets’, and those which have been acquired from sources outside the marriage, frequently
referred to as ‘non-matrimonial assets’.
Matrimonial assets would
typically include property such as the matrimonial home, any income derived
from the parties’ respective employment, any pensions accrued, any policies held
and savings accrued during the course of the relationship.
The concept of ‘non-matrimonial
assets’ tends to refer to assets which have been derived from a source outside
of the marriage, such as an inheritance acquired by one of the parties. Depending on all the circumstances of the
case, such ‘non matrimonial assets’ may be treated differently by the courts
and the starting point for division is less likely to be an equal split, if
this is not considered to result in a fair and just outcome. ‘Non-matrimonial
assets’ might arguably also include assets acquired by one of the parties before
the marriage or after separation, or assets which are the product of one
party’s sole endeavours, but again how they are divided will depend on all the
circumstances of the case and will take in to account a number of factors.
These are set out in the relevant legislation, Article 27 of the Matrimonial
Causes (Northern Ireland) Order 1978, and which states the Court is required to have specific regard to the income, earning capacity, property and other financial resources which
each of the parties to the marriage has or is likely to have in the foreseeable
future; the financial needs, obligations and responsibilities which each of the
parties to the marriage has or is likely to have in the foreseeable future; the
standard of living enjoyed by the family before the breakdown of the marriage;
the age of each party and the duration of the marriage; any physical or mental
disability of either of the parties to the marriage; the contributions which
each of the parties has made or is likely in the foreseeable future to make to
the welfare of the family, including any contribution by looking after the home
or caring for the family; and the conduct of each of the parties, but only if
that conduct is such that it would in the opinion of the court be inequitable
to disregard it.
Importantly, where
there are dependent children of the marriage, the court must have regard to the
financial needs of the child, including their housing needs, whether any child
suffers from a physical or mental disability; and the manner in which any child
was expected to be educated or trained.
In practice, the Court has a wide
discretion in determining division of both matrimonial and non matrimonial
assets results and the particular facts are
considered on a case by case basis, but lawyers practising in this area
are guided by the legislation and case law which assist us in advising how the
specific facts in any particular case are likely to be applied.
If you have any queries relating to finances after a marriage breakdown please feel free to contact our specialist solicitors in this area at [email protected] or contact us on 028 91811538 to discuss in confidence.
