The ONS figures reveal that the average age at marriage for men is around 38 years and 35 years for women. These statistics continue the rise in the average age of marriage since the 1970s. Marriage in the under the 20s has fallen whilst marriage for the over 65s has risen sharply.
With those figures, it isn’t surprising that family lawyers are increasingly finding that arguments in divorce financial settlements centre on whether a husband or wife should keep their property owned before marriage in the divorce financial settlement or if the assets should be shared.
In this article, family law solicitor, Robin Charrot, discusses how the divorce court treats pre-marriage assets.
What is a pre-marriage asset?
A pre-marriage asset is anything owned by a husband or wife before their marriage. Whilst a couple could have bought an asset together, disputes in divorce financial settlement proceedings focus on assets bought by a husband or wife in their sole name before the date of their marriage.
A pre-marriage asset can be anything of value as family solicitors warn that it is not worth arguing over the relevance of pre-marriage owned assets if their value will be outweighed by the additional costs of a longer financial settlement court hearing or the investigative costs of tracing and valuing the asset.
Typically, pre-marriage asset disputes relate to:
- Property – this could be a property bought by one party to the marriage that has become the family home or a buy-to-let property or second home
- Family business – if a husband or wife set up a family business or inherited shares in the business before their marriage
- Investments– this could be a share portfolio, cash savings, or cryptocurrency
- Pension – the pension could be a final salary scheme pension that was started pre-marriage with a current or former employer, a private pension scheme, or a business-related pension scheme
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Do pre-marriage assets need to be disclosed in divorce financial settlement negotiations or court proceedings?
Pre-marriage assets need to be disclosed in divorce financial settlement negotiations and court proceedings. That’s the case whether you are engaged in:
- Direct discussions
- Family solicitor negotiations
- Family mediation
- Family arbitration
- Divorce financial settlement court proceedings with an agreed financial consent order or where a financial court order is made after a contested hearing
The law says you need to provide full and frank financial disclosure of all your assets. If an asset was bought before your marriage, you should disclose it but you can argue that the value of the asset should be ignored when negotiating a divorce financial settlement or in contested financial court proceedings.
If you do not disclose the existence of a pre-marriage-owned asset and the court finds out about the asset the court can draw inferences about the honesty of the spouse who concealed the property. If the existence of the pre-marriage asset comes to light after a financial court order is made then your ex-husband or ex-wife could ask the court to reopen a financial court order made without disclosure of the asset, involving additional time and expense.
Do pre-marriage assets need to be valued in divorce financial settlement proceedings?
The court decides if assets need to be valued in divorce financial settlement court proceedings and will normally order a valuation by a jointly appointed independent expert. The fact that the court has ordered the valuation of a pre-marriage-owned asset doesn’t mean the court will decide that the value of the asset is taken into account when making a financial court order. The court often says it needs to know the total value of all assets owned before it can decide if pre-marriage assets are relevant or should be shared as part of the divorce financial settlement.
Are pre-marriage assets ignored if you sign a prenuptial agreement?
Divorce lawyers advise that the best way to protect pre-marriage-owned assets is to sign a prenuptial agreement to ringfence the assets. If you didn’t sign a prenup, then signing a postnuptial agreement is another option.
Prenuptial agreements can either be comprehensive in scope or the agreement can say that a particular asset should be ignored (or ring-fenced) in a divorce financial settlement. Whether the pre-marriage asset will be ignored depends on the circumstances in which the prenuptial agreement was signed and other factors. For example, was financial disclosure provided as part of the prenuptial agreement discussions, were you coerced into signing the agreement, did you both take independent legal advice, and was the agreement signed at least 28 days before the marriage?
If you meet all the tests for a prenuptial agreement to be found to be binding on both spouses, the pre-marriage asset can still be taken into account if a fair divorce financial settlement cannot be made without recourse to the property because the reasonable needs of the husband and wife can’t be met without taking into account the value of the disputed asset.
Take the case of a 40-year-old man who owned property before his marriage. The property became the family home when he married and he subsequently had 3 children with his wife. The couple doesn’t have any other significant assets and if the value of the family home isn’t taken into account in the divorce financial settlement the wife will end up with very little and will be unable to rehouse herself and the children. The outcome might be very different in a short marriage without children and where the wife had a good income and mortgage capacity.
How does the court decide if pre-marriage-owned assets should be kept by the asset owner?
In divorce financial settlement proceedings, the court makes a financial court order after assessing a range of statutory factors (referred to by family law solicitors as the ‘’section 25 factors’’) and exercising discretion.
The court will ask itself a series of questions:
- Is the asset a pre-marriage asset– there may be a dispute over the date of purchase or, if the couple were cohabiting at the time of purchase, it could be argued that the cohabitation (assuming the relationship moved seamlessly into marriage) means the asset wasn’t acquired ‘’pre-marriage’’
- Is there a prenuptial agreement and does the agreement meet all the relevant tests, such as the agreement was freely entered into, without coercion?
- What are the reasonable needs of any children and the husband and wife?
- What factors are relevant to the pre-marriage assets? For example, the length of the marriage or the fact that the pre-marriage asset was used as the family home for years may make it less likely that the asset owner can argue that the value of their pre-marriage asset should be ignored
- What are the family assets and can a fair and reasonable financial settlement be ordered without recourse to the pre-marriage-owned asset?
A family solicitor will ask the same sorts of questions to help you and your spouse reach a divorce financial settlement involving pre-marriage-owned assets to try to avoid a contested divorce financial settlement hearing.