What’s mine is yours…depending on what it is and when I got it.In the recent case of JvJ, the Court of Appeal gave guidance on the treatment of non matrimonial assets, which in this case was a company that the Husband had acquired and operated for 10 years before the marriage. The Wife accepted that she should have a lower than 50% share of the total assets and the Husband accepted the Wife should have an equal share of the matrimonial assets.
The Wife’s appeal centred around the value attributed to the non matrimonial aspect of the company. The Court confirmed that the correct approach in these circumstances was to begin by using the current value of the company and to subtract from it its value as at the date of marriage. The balance was to be shared equally between the parties. In considering the value at the date of marriage, an uplift was permitted for latent potential and passive economic growth, thereby increasing the value of the non matrimonial aspect.
The Court was clear that the application of the sharing principle in cases with pre acquired assets is inherently arbitrary. It follows that advice in this area is complex.
The family department is currently preparing for a hearing in the Court of Appeal involving significant pre acquired assets – watch this space for further updates.