Woman with hands arched over coins, representing protecting assets in her sole name

Can your partner claim against assets that are in your sole name?

This article is part of a series of articles that aim to debunk the top 10 myths and misconceptions around divorce and finances that we have come across with our clients.

Many people are under the misconception that if they are married and have assets in their sole name, they will not have to share these assets upon divorce. This is a myth.

What happens to assets in your sole name on divorce?

On divorce, all assets are put into a matrimonial asset pot and the Court then makes orders applying the factors set out in the Matrimonial Causes Act.

Factors taken into consideration for each party are:

  • Income
  • Earning capacity
  • Financial resources
  • Financial needs
  • Obligations and responsibilities
  • Standard of living enjoyed by the parties
  • Age
  • Length of relationship
  • Disability
  • Conduct
  • Contributions to the marriage

It is the last factor which can be relevant, where one party has made a significant contribution to the marriage.

With the assets that are of a lower value, the focus of the Court will be on meeting the needs of the parties and, in the majority of cases, that will require all assets, even those in sole names. However, for those who have larger assets, including significant inheritance, the Court may look to ring-fence those assets if they are able to meet the needs of the parties.

The family home will always be considered a matrimonial asset, as it has been intermingled.

How the Court review assets

The Court will make a careful analysis of the source of funds and when the property was acquired, taking into account the duration of the marriage and intermingling.

If the Court then decides that there should be some exclusion of non-matrimonial property, a decision has to be made as to how much whilst still achieving a division which is fair to both parties. The first priority for the Court should always be the meeting of the needs of the children and parties.

How to protect assets in your sole name

To try to protect assets, there are a number of steps that can be taken.

Putting assets in your sole name and keeping that and the income from it totally separate is one step, as it identifies that asset as something that should not be shared.

Any family members giving or loaning money, or when a decision is made to pass a company interest or farm down through the family, should take their own advice on how to protect those assets.

Trusts can also be used, but by far the best protection is to enter into a pre or post nuptial agreement. Properly prepared and with good advice, these will identify the needs of the parties on potential separation and ring-fence the assets that the parties do not want to share.

In order to ensure that a fair settlement is achieved in any separation and divorce, it is important to take advice from solicitors with expert knowledge of these areas. Our expert solicitors are able to give advice on welfare protection by the use of pre and post-nuptial agreements, as well as the best way to protect assets in divorce proceedings.

To see the full series of our Top 10 divorce finance myths, please click here.