I am very confused about what is classed as non matrimonial property and whether it can be excluded from the division of capital assets.
I bought a flat in my name in 1997 and my H moved in about 1998 - we then cohabited until 2001 when we married. In 2004 we bought a new house in joint names but retained the flat in my name. In 2007 we sold both properties and purchased another house in joint names which we now live in. Some of the equity in my original flat was used to buy this house and some I retained in a bank account in my name - where it still sits.
Can I claim all or any of the equity in my flat is not matrimonial property?
Second question - my husband had an inheritance during our marriage - is this matrimonial property?
If property is non matrimonial property can it still be shared between the parties ? Under what circumstances ? Is this where the needs calculation comes in?
Well, I have read your other post and it appears that the two houses you refer to have been pooled together to get a 4 bed house where you live and you pay all the mortgage.
You say your husband received an inheritance during the marriage, what has happened to that money since? Has he still got it or has it gone during the course of the marriage, or is it invested in the marital house?
You are right in that the money was pooled (other than part of the money from the flat which was kept separately in my bank account). If the money is pooled does it become matrimonial property - if so can I claim at least the part that was left in my account? He made a promise that he would never touch any of the money in the original flat but is now claiming to have forgotten that conversation .
As for the inheritance he left his job nearly 2 years ago and has spent about 1/2 of it just on spending money and buying some groceries. He has made nearly no contribution to the family finances or the mortgage otherwise. He still has quite a large chunk left over. I don''t want it but want to know the position.
I think that you just have to write it all down and be honest, including that he left his job on receiving an inheritance and is quickly working his way through it and not contributing to marital finances.
You and your two children need a home which ever way you look at it.
If he feels able to stay out of work and carry on until the inheritance is gone that is up to him but I do not personally see why you and the children should be penalised for that, he could get up get on and get a job and that would avoid putting you and the children in the position of homelessess.
I think you need to get straight on and get started before too much more time elapses.
He is not willing to share an inheritance, stops working and contributing as a result of that.
Sounds like he will pull you down if you let him.
You are not making a claim on his inheritance but also he should not be making a claim therefore against the house, partly I think because you need to be housed and matrimonial causes act is supposed to take into account the resources each party bought into the marriage, the contributions by both, what the likely contributions are in the future.
I think you could make a good needs argument based on finance, responsibility and hopefully get it sorted out without too much stress.
Thanks - we are not in dispute yet - just started talking - I don''t know what I should offer him really and on what basis. He has to have somewhere to live but as you say as the situation drags he is not adding to the pot of available money and I should not be penalised by that. Just don''t know what the courts would say.
the money from the flat whcih was invested into the FMH would not normally be excluded.
The remaining savings, which were ept separate, and the inheritance *might* be treated as non-matrimonial property BUT generally, assets would only be excluded once both pareties reasonable needs have been met.
I would receommend focussing on what each of you needs and can afford.
You need somewheer suitable for you (and the children if they are with you) to live. So you need to think about the size and cost of proerty which you will need, how big a mortgage you can (a) get and (b) afford, which then tells you how much you will need by way of a deposit
Your ex needs somewhere which is suitable for him to live, and for the childnre when they visit. It''s relevant to look at his earning capacity (he isn''t working at present by choice, he would presumably be able to work, and you have an idea of what he could reasonably earn based on his previous jobs) So consider his mortgage capacity. How much of a deposit would he need, assuming he goes back to work?
Look at those figures and how they compare with the assets you actually have.
If there will be money left over after you have each got the deposit you need to rehouse, then at that point it may be reasonable to look at whther you split what is left, or look at if./how much of the inheriatance or savings should be ignored.
What I think the parties should also consider here is that the husband is willing potentially to include assets bought in by the wife but at the point he receives an inheritance he stops contributing to the marital finances, keeps his whole inheritance to himself, stops work and then leaves both his wife and potentially his children in a very vulnerable situation.
In the same way I see it as financial abuse for a spouse to declare at the point the other recieves an inheritance on the death of a parent that they want a divorce and that the spouses inheritance goes into the marital pot I do think it inequitable (and I do believe it is also covered under section 37 of the matrimonial causes act - disipating marital assets - so his income and then putting the house all at the cost of the wife and refusing to share an inheritance that comes to him on the basis that it is his).
Giving up work is not seen as a good excuse from the courts point of view, woman as well as men are expected to get themselves out to work and back on their feet.
Don;t know the size of the inheritance but it may well be that he has enough to put down a deposit on a house, or even buy a house especially if he got himself back out to work. Then there is the subject of child maintenence - if he is working all of that falls on the wife so I would have thought depending on the amount of savings from the sale of the flat it would be a type of "captialised" maintence in effect.