Rural Estates Newsletter Spring 2021 - Flipbook - Page 21
So far so good, but then one has to consider whether non-matrimonial property has been
‘mingled’. Non-matrimonial property can become matrimonial as a result of its treatment
during the marriage. If it is used to support the parties’ standard of living, then it can
become ‘merged or entangled’ with other property. The longer the marriage, the greater
the risk of ‘mingling’.
“
If, for example, one of the parties draws upon an inheritance to fund the purchase of a
family home, the family home would invariably be treated by the court as matrimonial
property for the purpose of any sharing claim, regardless of whose name the family home
is held in. Whereas inheritance which is kept separate in the recipient’s sole name and is
not used to fund family expenditure is likely to retain its non-matrimonial character. If one
party inherits a painting during the marriage and decides to hang it in the matrimonial
home, the painting will be more vulnerable to an argument that it is a matrimonial asset
than if it had been kept in a museum or a specialised storage facility.
If one party inherits a painting during the marriage
and decides to hang it in the matrimonial home, the
painting will be more vulnerable to an argument that
it is a matrimonial asset than if it had been kept in a
museum or a specialised storage facility.
Protecting non-matrimonial property: nuptial agreements
Nuptial agreements are an effective method of asset protection. Although nuptial
agreements are not strictly legally binding, the family court will hold spouses to their
terms if they meet certain requirements. Nuptial agreements can therefore be used
to ring-fence non-matrimonial property, even when the spouses live in that nonmatrimonial property.
The nuptial agreement must have been freely entered into; there can be no suggestion
that one party has been pressurised into signing the agreement. In the context of a prenuptial agreement the parties will, therefore, need sufficient time before the wedding to
consider and negotiate its terms.
The implications of the agreement must be fully appreciated by both parties. The parties
must fully understand the other party’s financial position and their own entitlement in the
event of a divorce without an agreement in place, so that they understand what they are
‘giving up’ by entering into the agreement.
Rural Estates Newsletter
Spring 2021
21
