Financial remedy proceedings are concerned with achieving a fair outcome taking into account the factors under Section 25 of the Matrimonial Causes Act 1973. While equality is often the starting point, fairness does not always mean equal division. Prior to ringfencing an asset, the court must consider the parties’ needs. The approach of the court will largely depend upon the amount of equity within the matrimonial pot, and whether the case is needs-based or sharing-based.
By Catharine Langley, Barrister Westgate Chambers
The argument of unmatched contributions arises in cases where one party states an asset has been brought into the marriage pursuant to the efforts of one side, and it ought not form part of the matrimonial pot for division. The basis of unmatched contributions seeks to protect and exclude the entirety, or the majority, of an asset because the wealth accumulated cannot be attributed to the joint endeavour of the marriage. Assets can include property, investments, businesses, chattels, inheritance or gifts.
Assets acquired during the marriage can be subject to the discussion of unmatched contributions. Most common examples are inheritance/gifts. In cases where either the applicant or respondent has built a business or has otherwise been responsible for the financial accumulation of a particular asset, it does not necessarily mean an unmatched contribution argument will be successful. The other side’s contributions to the home, child-care, non-financial and financial input into the family is enough to matrimonialise assets, even if one party has been responsible for its existence and growth. There will be a stronger push towards considering assets as matrimonialised due to the nature of the marriage.
MATRIMONIALISATION
The question the court will be concerned with when dealing with an argument of unmatched contributions is: to what extent has the property become matrimonialised?
The term matrimonialised has been invented by family practitioners to describe the process of non-matrimonial assets becoming part of the marital pot. The meaning of matrimonialisation came under scrutiny in the recent authority of Standish v Standish 2025 UKSC 26 paragraph 47, 51-52:
‘First, it is important to recognise that there is a conceptual distinction between matrimonial and non-matrimonial property. In general terms, this distinction turns on the source of the assets. Non-matrimonial property is typically pre-marital property brought into the marriage by one of the parties or property acquired by one of the parties by external inheritance or gift. In contrast, matrimonial property is property that comprises the fruits of the marriage partnership or reflects the marriage partnership or is the product of the parties’ common endeavour. It has long been recognised that what is not determinative in deciding what is and what is not matrimonial property is who has title to the property…’
‘K v L [2011] EWCA Civ 550; [2012] 1 WLR 306. At paragraph 18, Wilson LJ said… “Three situations come to mind: (a) Over time matrimonial property of such value has been acquired as to diminish the significance of the initial contribution by one spouse of non-matrimonial property. (b) Over time the non-matrimonial property initially contributed has been mixed with matrimonial property in circumstances in which the contributor may be said to have accepted that it should be treated as matrimonial property or in which, at any rate, the task of identifying its current value is too difficult. (c) The contributor of non-matrimonial property has chosen to invest it in the purchase of a matrimonial home which, although vested in his or her sole name, has—as in most cases one would expect—come over time to be treated by the parties as a central item of matrimonial property.”
Whilst the Supreme Court agreed with the obiter dicta above, they disagreed with “the concept of matrimonialisation should be applied narrowly. There is no good reason to treat matrimonialisation as a narrow concept. It is neither narrow nor wide. Although this has not previously been clearly spelt out, what is important (leaving aside matrimonial property resting on contributions from each party) is to consider how the parties have been dealing with the asset and whether this shows that, over time, they have been treating the asset as shared between them. That is, matrimonialisation rests on the parties, over time, treating the asset as shared. “
In other words, where a party has mixed a non-marital asset for the benefit of the family, it is likely that it would have become matrimonialised.
In Hart v Hart 2017 EWCA Civ 1306, the Court of Appeal also gave guidance containing a three-stage process as to how cases involving non-matrimonial property should be approached in practice. In summary the court will need to:
- Make a case management decision as to whether factual investigation of the asserted non-matrimonial property is required.
- Make such factual determinations about the asserted non-matrimonial property pertaining to the evidence provided by both parties and drawing inferences where appropriate.
iii. Undertake the section 25 exercise, having regard to all of the relevant factors in the case.
Ultimately whether property has become matrimonialised differs from case to case. In short, matrimonialisation can be summarised as the source of the asset, how parties have treated it throughout the marriage, and the intention of the parties. Where the asset in question has been considered matrimonialised, it is unlikely a successful unmatched contributions argument will prevail.
THE FAMILY HOME
In the large majority of cases, the matrimonial home and its contents will be treated as matrimonial property, especially where both parties have contributed to its purchase and/or it has been placed in their joint names. In medium to long marriages, even where one party has solely contributed to the property or if it remains in the name of one party, it is still likely to be considered matrimonialised.
In Standish the matrimonial home has been described as: 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.’[43]
It is for this reason the matrimonial home has a unique place within the marriage. In most cases regardless of who purchased the property, it would have become matrimonialised due to the nature of it being the family home. This does not necessarily mean it has to be divided into equal portions. In needs cases, where assets are limited, the court will have to determine the financial needs of both parties in accordance with the section 25 factors including but not limited to: health, children, housing need and other financial resources.
INHERITANCE AND GIFTS
Inheritance or gifts received by one party whether prior to, during, or after the marriage to which the other party has made no contribution would usually be considered property where the argument of unmatched contributions is applicable. However, the court’s determination will depend on the needs of the parties, how much equity is available, when it was received, the duration of the marriage and the extent to which the inheritance has been mixed or mingled with the matrimonial assets.
In AB v CD (Inherited Property)2004 EWHC 1364 (Fam) Munby J stated:
‘there is inherited property and inherited property … Fairness may require quite a different approach if the inheritance is a pecuniary legacy that accrues during the marriage, than if the inheritance is a landed estate that has been within one spouse’s family for generations and has been brought into the marriage with an expectation that it will be retained in specie for future generations.’
GW v RW (Financial Provision: Departure from Equality)[2003] 2 FLR 108 Mostyn J stated:
‘The judge should … decide how important it is in the particular case. The nature and value of the property, and the time when and circumstances in which the property was acquired, are among the relevant matters to be considered.’ [45]
Where inheritance assets have become mixed into matrimonial life, the argument to exclude will become more complex, and the court will need to take into account the definition of matrimonialisation as explored above. Where the asset has largely been treated as isolated property this will indicate the parties treated it differently by virtue of its source.
It is important to note, in needs cases where there is limited equity, the financial needs of the parties will trump all, and the court will use all available resources, including those that would otherwise be ringfenced, to ensure the parties are adequately housed where possible. In essence, where there is little in the matrimonial pot, the court will consider the value of any inheritance/gifts when dividing up the assets.
DURATION OF THE MARRIAGE
The length of the marriage is an important consideration when assessing if an asset has become matrimonialised. Baroness Hale in Miller v Miller and McFarlane v McFarlane [2006] UKHL 24 ‘The source of the assets may be taken into account but its importance will diminish over time. Put the other way round, the court is expressly required to take into account the duration of the marriage: s 25(2)(d). If the assets are not “family assets”, or not generated by the joint efforts of the parties, then the duration of the marriage may justify a departure from the yardstick of equality of division.’[152]
Mostyn J observed in N v F 2011 EWHC 586 (Fam) that in a short marriage when deciding if the existence of pre-marital property should be reflected at all in departure, the court needs to consider ‘questions of duration and mingling’ of the asset throughout the marriage. The shorter the marriage, the less time assets have had to mingle; therefore, a departure from equality may be justified.
In GW v RW (Financial Provision: Departure from Equality) [2003] EWHC 611(Fam), the court took into consideration a period of pre-marital cohabitation that had ‘moved seamlessly’ into the marriage as part of the duration of the marriage. Seamless cohabitation means the time parties lived together prior to marriage is counted towards the total length of the marriage.
In conclusion, running the argument of unmatched contributions remains a powerful tool to persuade the court to ringfence pre-acquired wealth without undermining the overarching principles of sharing and fairness of the matrimonial assets. It is important the court reaches an outcome that is rooted in the lived experiences of the parties. Ultimately, where an asset is the product of unmatched contributions, the argument will be whether it is fair and just that those assets are excluded from the division of the marital pot.
Catharine Langley, Barrister Westgate Chambers