A Legacy Intact: safeguarding your family business in the event of divorce - Book - Page 23
LONDON IS KNOWN AS
THE ‘DIVORCE
CAPITAL OF THE
WORLD’. THE LAW IN
ENGLAND AND WALES
PROVIDES FOR VERY
GENEROUS AWARDS TO
T H E F I N A N C I A L LY
W E A K E R PA R T Y
ON DIVORCE
Classification of property as ‘non-
An important point to bear in mind,
(2) DURATION OF THE
matrimonial’ is normally only a
however, is the possibility of non-
MARRIAGE.
factor in big-money cases (i.e.
matrimonial assets converting to
The longer the marriage, the harder it
where there is considerable surplus
matrimonial if the asset is mingled
is to justify a departure from a 50:50
of assets beyond the needs of
with marital assets or used as a
outcome. It is worth bearing in mind
the parties). In lower value cases
primary resource for the maintenance
that the English Family Court adds
a
of the family. Assets which are
‘seamless’ cohabitation in advance
distinction
between
different
However, if there is either nothing
classifications
may
gifted or inherited and kept strictly
of a marriage onto the length of
else or an insufficient level of other
not be feasible or affordable as
separate from the rest of the marital
the actual marriage: four years of
assets within the matrimonial
the Court’s priority is to ensure
assets, even if they are received
seamless cohabitation and a two
pot, the Court would have to look
that both parties’ needs are met.
during the marriage, would be more
year marriage would be considered
easily defined as non-matrimonial.
a 6 year marriage in the eyes of the
of
property
to the shareholding to meet the
departing spouse’s claim. In each
Non-matrimonial
shareholder’s case, the Family
include the following:
Court will examine practical ways
1.
property
can
Court.
If the Court determines an asset is
Business or investment assets
non-matrimonial property, it may
Not only will the Court look at the
of meeting the departing spouse’s
generated solely or mainly
exclude it from the matrimonial
duration
needs. In doing so it will have
by one party usually prior to
pot or depart from equality as
but it will also look at the length
regard to the following:
cohabitation/marriage or post-
a
of
separation;
departure
Pre-marital/civil partnership
circumstances of each individual
enjoyed
assets;
case: for example, the longer a
and
Assets acquired post-
marriage/civil partnership, the less
separation referable to the
the departure. If the parties have
efforts of one party alone, e.g.
kept their financial affairs separate
bonuses; and
and the non-matrimonial asset has
Property acquired by gift or
not been ‘intermingled’ with other
inheritance.
assets, a bigger departure may
(1) NATURE OF THE
2.
SHAREHOLDING.
In short, a shareholding of a dynastic
3.
quality, particularly one inherited
by one spouse, gifted from family
or put in trust before a marriage, is
more likely to be treated as ‘nonmatrimonial’
property
than,
4.
for
example, a more recently acquired
shareholding
built
up
which
during
the
consequence.
will
The
extent
of
depend
on
the
be justified. As stated previously,
perhaps
22
time
the
within
marriage
that
itself
marriage
that the shareholding has been
the
by
the
shareholder
departing
spouse.
A SHAREHOLDER SHOULD
NOT BE FORCED TO
SELL THEIR INTEREST
I N A FA M I LY B U S I N E S S
TO MEET A SPOUSE’S
CLAIM, BUT IT CAN
HAPPEN IF OTHER
ASSETS ARE
INSUFFICIENT
every case turns on its facts.
marriage.
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