A comparative overview of the treatment of non-matrimonial assets, indexation and value increases [2013] CFLQ 61

Keywords: Ancillary relief - financial ordering - matrimonial property - pre-marital assets - non-marital assets - comparative law

This article provides a comparative overview of the way non-matrimonial assets are treated by the European continental matrimonial property regimes and Scotland, as well as some common law jurisdictions where non-matrimonial assets are given special consideration. It then attempts to forecast the future treatment of pre-marital assets and other non-matrimonial assets in England and Wales, arguing that this jurisdiction is gradually moving towards a clearer distinction between matrimonial and non-matrimonial property and a 'sharing the fruits of joint labour only' approach, and thus a modern partnership-based approach. This development necessitates not only classifying the assets but also dealing with value increases and potentially using indices as a tool to 'measure' such increases. The article concludes that the law of England and Wales has, to a certain extent, moved away from its fully discretionary approach towards a ‘pillarised' and 'rule-based discretionary' system of financial relief upon divorce.

The full version of this article appears in issue 1 of 2013 of Child and Family Law Quarterly.