In order to reach an overall settlement, there are various steps which should be taken. Before considering an appropriate division in line with current legislation it is important to identify and value the various items of matrimonial property as at the date of separation.
Matrimonial property comprises all property acquired by either spouse, or both of them, between the date of marriage and the date of separation. An exception to this is a home purchased prior to marriage when it is intended as a family home – this would be included. Additionally, furnishings for a family home, acquired before marriage, also form part of the matrimonial property.
Pre-marriage assets, gifts or inheritance from a third party are excluded from the definition of matrimonial property provided they remain in the same form throughout the marriage. For example, inherited cash which is held in a bank account, separately, in the sole name of the party who inherited it, and is not intermingled with matrimonial funds, will be excluded from matrimonial property. However, if cash is inherited and then used to purchase say a property or invested in a share portfolio during the course of the marriage, the property or portfolio will be included.
Certain arguments may be put forward to account for the source of funds used to purchase the property or portfolio but there is no doubt that both would fall within the definition of matrimonial property. Accordingly the automatic protection available in terms of the current legislation would be lost.
It is possible to protect your assets in these circumstances and the Family law team at Lindsays are ideally placed to offer you advice on how best to protect your position.
