Over the last few months there have been many articles in the press outlining how couples have split their assets on divorce. In all bar a few instances, these have been cases in which the marriages have broken up acrimoniously. In such cases, the period between the couple’s separation and the commencement of divorce proceedings is normally short. However, some people are in no hurry to end their relationship formally and divorces often take place years after separation. A divorce in the UK can be sought without the consent of the other party after a separation of five years.

When the divorce follows years after the split, the financial arrangements may well not have been resolved and, because of the passage of time, further problems can arise, especially where the fortunes of the separated couples have differed.

Two recent cases illustrate the current views of the UK courts in such cases. The first case concerned an Italian man who separated from his wife in 1985 and divorced her in 1992. In 2005, he claimed a share in the partnership which they had operated together prior to their separation. The issue was in essence whether the new business his ex-wife had built after their separation had its financial foundation in the assets of the marriage accumulated prior to 1985. The judge concluded that the wife’s business assets were not ‘matrimonial assets’ and her ex-husband’s claim failed.

In the second case, a husband developed a company after his divorce from his wife and without any help, finance or other input from her. She claimed a share in the new company, alleging that its genesis lay in another company which they had operated together when married. The judge rejected the claim.

In deciding such cases, the court seeks to differentiate between ‘matrimonial’ and ‘non-matrimonial’ assets. The former are those built up during the marriage and the latter are those which are not. In general, only matrimonial assets will be regarded as warranting an approximately equal split. ‘Post-separation’ assets will be non-matrimonial assets to the extent that they are acquired after separation, come into existence by the industry or efforts of their owner alone and are not rooted in (i.e. the result of or financed by) matrimonial assets.

If you are worried about the financial implications of divorce or have concerns about a possible claim on assets you have built up after separation or divorce, contact us for advice. We have considerable experience in all aspects of divorce and financial settlements.