In the vast majority of Financial Relief cases the matrimonial home will be treated as a matrimonial asset. It is a rare scenario indeed where one party has reasonable prospects of persuading the court that the family home, usually the physical, emotional and financial centre of the family, is not a matrimonial asset to be added to the pot and divided with equal entitlement. However, the position is not quite as straightforward as the family home always being a matrimonial asset to be divided as part of the matrimonial acquest and careful consideration should be given at the outset, particularly where a case is finely balancing the border between needs and sharing and where one party’s unmatched contributions are a significant factor in the case.
Family lawyers will all be familiar with the dicta of the House of Lords in the transformational cases of Miller v Miller; McFarlane v McFarlane [2006] UKHL 24. There was discord between Lord Nicholls and Baroness Hale on whether there would be a presumption that the matrimonial home would be a matrimonial asset. Lord Nicholls came down in favour of the matrimonial home normally being treated as matrimonial property, regardless of how and when it might have been acquired:
“The parties’ matrimonial home, even if this was brought into the marriage at the outset by one of the parties, usually has a central place in any marriage. So it should normally be treated as matrimonial property for this purpose. As already noted, in principle the entitlement of each party to a share of the matrimonial property is the same however long or short the marriage may have been.”
Baroness Hale took a more nuanced approach and whilst proffering that family assets (including the family home) acquired for the benefit of the family as a whole would be matrimonial property, she didn’t go as far as Lord Nicholls as to suggest that this would usually be the case.
In interpreting and applying the judgments in Miller and McFarlane. Baron J in NA v MA [2006] EWHC 2900 (Fam) considered Lord Nicholls’ statement and said:
“I do not take that to mean that the property must be divided equally but its value and the lifestyle that it produced are relevant factors in the court’s consideration of fairness”.
Fifteen years later and the jurisprudence has been applied and pontificated upon on various occasions by the High Court and Court of Appeal since, usually within the context of considering what is to be considered matrimonial and non-matrimonial property.
A comprehensive review of the relevant authorities on pre-marital assets was undertaken by Mostyn J in N v F (Financial Orders: Pre-Acquired Wealth) [2011] EWHC 586, from which he extracted the following approach (as earlier set out by Wilson LJ in Jones v Jones [2011] EWCA Civ 41):
- Pre-marital property should be taken into account because it represents a contribution made by one party unmatched by an equivalent contribution by the other
- The longer the length of a marriage the easier it is to say that, by virtue of the mingling of that property with the product of the parties’ marital endeavours, the supplier of that property had, in effect, agreed to share it with their spouse; in the case of a short marriage fairness might well require that the claimant should not be entitled to a share of the other’s non-matrimonial property
- The source of the asset might be a good reason for departing from equality, and
- Non-matrimonial property represents a contribution made to the marriage by one of the parties; however, sometimes, as time passes, the weight fairly to be attributed to that contribution diminishes, but sometimes it will not
Even in circumstances where an asset may be a matrimonial asset, it does not necessarily lead to an equal division. At Paragraph 152 of Miller, Baroness Hale referred to this saying “the source of the assets may be taken into account but its importance will diminish over time”. Mostyn J referred to this at Paragraph 9 of his judgment in S v AG [2011] EWHC 2637 (Fam); [2012] 1 FLR 651 where he said that “even the matrimonial home is not necessarily divided equally under the sharing principle; an unequal division may be justified if unequal contributions to its acquisition can be demonstrated”.
In FB v PS [2015] EWHC 2797 (Fam); [2016] 2 FLR 697, the family home was inherited and the court found it was a significant unmatched contribution that justified a significant departure from equality:
“AR was therefore the matrimonial home for some fifteen years. Given the dicta of Lord Nicholls, I can only find that it is matrimonial property but I do not accept that this means that it is to be shared between the parties. AR was not acquired by the parties themselves during the marriage. It had been a matrimonial home of TS and his wife, since 1982. The Husband and his siblings were brought up there. The transfer itself is a very significant unmatched contribution, now worth some £3.5 million gross.
….
There are, of course, two ways in which a court can approach the matter. The first is to allow a discount to equal sharing to reflect this unmatched contribution. The second is to remove an appropriate share of the value of AR from the matrimonial assets to reflect the unmatched contribution and then divide the figure that is left equally. I propose to approach the matter on the second basis and then check it by undertaking the first exercise”
These arguments will of course attract little sympathy in needs cases but those which fall squarely into sharing category or teeter on the brink of it are worth further consideration. We should not assume just because a property has been the family home that it automatically falls to be classified as a purely matrimonial asset and a more detailed analysis of the nature and source of the asset may well be warranted and fruitful for the party who does not wish to share it in cases where there is enough to go around.
Written by Jenna Lucas, Senior Consultant Barrister, Unit Chambers.