Can my partner claim my inherited asset if we divorce?
This question often causes concern for clients contemplating ending their marriage.
In general, all of the assets arising from the marriage are pooled together for the Court to consider how they should be divided between the parties upon divorce. In each case, the Court will consider how each of the parties will meet their needs for the future (and in particular the needs of any dependent children of the family) and any inherited assets are not automatically excluded from the “pot”
As with all divorce proceedings, the starting point for the Court in any financial settlement is to consider the factors set down in Section 25 of the Matrimonial Causes Act 1973. Every case is different, but the court must take into account the parties’ ages, income, resources, their needs, standard of living during the marriage, their contributions and the length of the marriage. Inheritance is not specifically referred to in the statute but it is generally considered within the definition of resources. There is no indication given as to the weight the court should attach to each of the factors listed and every case is decided on its own facts.
It is generally accepted that the fact that an asset is inherited will count for little in limited means divorces. This follows the Judges’ comments in the case of White v White (2000) UKHL 54, when Lord Nicholls stated that the fact that an asset was inherited “would carry little weight, if any, in a case where the claimant’s financial needs cannot be met without recourse to this (inherited) property.”
In cases where means are not limited, the key issues to be considered by the court are the size of the inheritance, when it was received, how it has been used and the financial needs of the parties and any children. If inherited assets are transferred into joint names or used for the benefit of the family, they may become “intermingled” and give rise to a claim that they should be treated as part of the matrimonial pot.
Ringfencing away from the matrimonial pot is more likely if the inherited assets have been kept separate and are not required to meet the parties’ needs. Assets inherited just before the marriage breakdown are less likely to be included in the pot. Fundamentally the needs of the parties, and in particular the needs of minor children, will be the overriding consideration for the court.
Although case law can provide some guidance on this issue, each case very much depends on its own individual facts and circumstances. Resolving financial matters arising from divorce can be a complex and confusing issue, but here at RJT Solicitors, we can advise you fully as regards all your legal rights and obligations and work with you to achieve the best possible financial settlement.