Dividing alternative assets on divorce

28 Aug 2015

The starting point on divorce is to divide equally all the assets acquired during the relationship but, as usual, the devil is in the detail. What are known as ‘non-matrimonial assets’, pre-acquired inherited assets for example, are excluded unless there is a perceived financial need for them to be made available for distribution as part of the divorce settlement. There can be uncertainty as to how the included assets are valued, and whether some categories should be excluded completely.

The general rule is that personal possessions are excluded (cameras, clothes, watches, jewellery etc.), but even then it can (and has) been argued successfully that this depends on their value relative to the whole. I had a husband client who couldn’t be persuaded to exclude his wife’s handbags from the negotiations, even though they were a very wealthy couple. The same could apply to vintage clothes (Michael Jackson’s jacket, anyone?) or even shoes.

Another excluded category is heirlooms. These are different from a list of items that are simply inherited; the legal owner of an heirloom holds it on trust for future generations. Again, there are frequently arguments about whether a collection of paintings, furniture, jewellery etc. should be given heirloom status or not. The relevant factors include provenance and how the category of asset has been treated in the past by its owner or the family. Did the husband sell one of the other Rembrandts ten years ago to pay gambling debts? If so, he’ll struggle to succeed with the argument that this one is an heirloom.

Clearly jewellery can be included if of sufficient value, although, there tends to be a frisson of distaste when engagement rings are brought into the frame. I’ve never had an argument about the value of a family pet though I’ve known others who have. I have had a case of horses being removed from the family home at dead of night and taken to a secret destination.                                                                                                                                                                                                                                                                                                                             

Other than that it’s just a question of valuing everything with expert help if necessary, and dividing it down the middle. Simple? Of course not. Businesses and share portfolios, land in countries no-one has ever visited, portraits of family members painted by renowned artists - disputed valuations take up more time in divorce than anything else. The notorious case of the vengeful wife distributing her husband’s vintage wine to everyone in the neighbourhood is not a one off. Drinking, destroying or selling expensive collections beloved by the ‘enemy’ can provide ample ammunition for those intent on revenge.

So the advice has to be to try and agree values if at all possible. If you can’t agree, a Single Joint Expert is likely to be appointed. Although paid for by the couple, the expert’s duty is to the Court. Once their report is provided, the lawyers can ask questions and then, if there’s still no agreement, the expert gives evidence at the trial and is cross examined as to the conclusions they’ve reached. In some cases there are multiple expert witnesses although judges try to limit this. Ultimately it’s the judge’s decision. If so, don’t let it get out of hand. Legal and experts’ costs can easily escalate and become disproportionate to the value of the asset itself.

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