Since inherited assets do not ‘derive from the marriage’, nore do they accumulate from joint efforts or the ‘joint venture’ of marriage, isn’t it only fair that they should escape the approach of being divided equally?

Well, unfortunately, the answer once again is that, it depends on all the circumstances.

It is true that they should be and are treated as being different in nature to assets, which accrue during the marriage as a result of ‘joint efforts’ and are treated as a specific kind of contribution to the marriage financial pot, requiring a different approach.

However, one needs to examine ‘all the circumstances’ and apply the factors set out in Section 25 of the Matrimonial Causes Act (remember this from our guide on dividing assets on separation)

You will recall from the guide on dividing assets on separation that the NEED factor is very influential in so many situations and specifically when the assets do not extend beyond meeting everyone’s need for housing.

Other ‘relevant circumstances’ may include;

• The proportion of inherited assets compared with the rest of the assets
• The fact that that there may be enough other assets to meet each person capital needs (see separate guide) with surplus left over.
• The fact that the inherited assets still exist separately from the other assets.
• The fact that the inherited assets were inherited relatively recently
• The fact that it may have always been intended that the inherited assets remain with the family, such as a family farm.

The fact is that the law recognises that inherited assets belong to a different class of contributions to the marriage requiring a different approach but unless there is more than enough capital to meet housing needs, the likelihood is that most, if not all the inherited assets will be needed to meet those housing needs.

Having said this, you will recall the principle of achieving a fair outcome and the principle that assets are to be divided equally UNLESS there is good reason to depart from an equal division.

Well, the fact that some of the assets are inherited may justify a departure from an equal division especially where some of the other circumstances above also exist. Every attempt should be made to reach an outcome that ‘feels’ fair to you both.

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