Protecting Inheritance On Divorce

• Published date: 22 July 2021
• Subject Matter: Family and Matrimonial, Family Law, Divorce, Wills/ Intestacy/ Estate Planning
• Law Firm: Shoosmiths
• Author: Ms Caroline Watson and Adam Maguire

The starting point on divorce is that the assets acquired during the marriage fall into the 'matrimonial pot' and will be divided equally between the parties. This is called the sharing principle.

However, in certain circumstances an inheritance will be a relevant contribution and a good reason to depart from an equal division.

Matrimonial and non-matrimonial assets

The court will distinguish between matrimonial (assets acquired during the marriage through the joint efforts of the parties) and non-matrimonial assets (those acquired prior to marriage, post separation or received through an inheritance). In White v White [2000] UKHK 54 it was recognised that a party should be allowed to keep his non-matrimonial property, brought into the marriage or inherited or gifted to him during the marriage if the other party's financial needs could be met without recourse to the non-matrimonial assets.

The weight the court attribute to the existence of non-matrimonial property can depend on the way the parties have organised their financial affairs and the time that has elapsed since the property was acquired. The longer the marriage the more likely non-matrimonial property will become merged and entangled with matrimonial property. For example, if an inheritance has been used to renovate the matrimonial home, an argument that...