12 June 2015
Your Entitlement to Non-Matrimonial Property
In divorce and separation cases there is always going to be a discussion about the division of assets, including property and other investments. Assets owned in both your joint names and those in your sole names need to be divided fairly and in a way which ensures both of your needs are met and those of any children - the exercise of dividing your finances needs to be considered regardless of how little or much you own.
If after you and your spouse have separated but before the terms of a final financial settlement have been agreed your spouse receives a bonus from their employer, this leads to the question as to whether you should be entitled to a share of that bonus.
Matrimonial Property & Non-Matrimonial Property
The spouse who has received the bonus post-separation is likely to prefer to argue that it is non-matrimonial property and that it should therefore not be shared in the same way as other property or assets which have been accrued during the marriage.
If however the bonus relates to work undertaken during the marriage then it can be argued that the bonus was accrued prior to separation and should rightly be considered a matrimonial asset. Similarly, it could be argued that even if relating to a post separation period, efforts made during the marriage that were supported by the other party made such a bonus possible.
Even if it is found that the bonus represents non-matrimonial property, if it is needed to ensure that the parties’ needs are met, it will be brought into the pot available for division.
The Sharing Principle
The sharing principle refers to the process of dividing assets on divorce and is applied to all the parties’ property. The starting point for the sharing of matrimonial assets is usually 50:50 but then consideration is given to other factors to determine whether that is fair in all the circumstances. It must also see all the parties’ needs are met.
Bonus Pay Outs
The extent to which one person is entitled to receive a share of any bonus received by the spouse either during the marriage, after separation or in the future can be a contentious issue. Ultimately if the parties cannot agree, it will be determined by the court.
In clean break cases, the sharing principle may be applied in the division of assets up to the point of separation, but neither party is entitled to a share in the income or assets of the other which they receive or accrue in the future.
If there is to be ongoing maintenance then the court can order this to include a share of future bonuses either by way of a percentage or as part of the overall maintenance award.
In any divorce case where bonuses are concerned, the courts will not apply a rigid formula as each case is different. Instead, the courts will use their discretion to achieve a fair outcome for both parties by taking into account all of the assets and circumstances of the case.
If you have any queries regarding the division of your assets in your divorce or separation, expert Family Lawyers at Slater and Gordon offer an initial consultation in which they can answer your questions and put your mind at ease, call us on freephone 0800 916 9055 or contact us online and we’ll call you back.