Our articles are written by experts in their field and include barristers, solicitors, judges, mediators, academics and professionals from a range of related disciplines. Family Law provides a platform for debate for all the important topics, from divorce
and care proceedings to transparency and access to justice. If you would like to contribute please email
emma.reitano@lexisnexis.co.uk.
What’s mine is (*not) yours - the treatment of non-matrimonial property: no longer a lawless science?
© Copyright LexisNexis 2024. All rights reserved.
Introduction
In recent years there has been two arguably parallel lines of case law on the general approach courts should take to non-matrimonial property. The two groups of case law represent the two different schools of thought: the artists and the scientists. Mostyn J himself a clear leader of the scientists described the difference between the two approaches in
N v F (Financial Orders: Pre-Acquired Wealth) [2011] 2 FLR 533. Under Mostyn J’s scientific approach the court must first identify the whole matrimonial pot and within that how much constitutes both matrimonial and non-matrimonial assets. The court shall ‘identify the scale of the non-matrimonial property to be excluded leaving the matrimonial property alone to be divided in accordance with the equal sharing principle’ (paras [10] & [11]). At para [14] of that case he was clear that:
‘I adhere to my view that the two step approach is the right one generally speaking. It is precisely what Wilson LJ did in Jones. It seems to me that the process should be as follows:
(i) Whether the existence of pre-marital property should...
Read the full article here.
