When people first seek advice about divorce finances, the question is often simple and deeply personal: “What can I keep?” It may be the family home, a business, inheritance, or money brought into the marriage. The answer is rarely straightforward. In this instalment of In conversation with, JMW Family Partner Holly Tootill explains how the court in England and Wales approaches different types of assets and why ownership is only part of the picture

1. Is any asset completely untouchable on divorce?

Holly: Usually, no. The family court has wide powers when deciding how a couple’s finances should be resolved. It can make orders concerning property, lump sums, maintenance and pensions. That does not mean every asset will be divided equally, or even shared at all, but it does mean that labels such as “mine”, “in my sole name” or “owned before we met” are not conclusive.

The court’s first task is to understand the whole financial picture. It then considers all the circumstances, including the length of the marriage, the parties’ resources, their contributions, their standard of living and, above all, their respective needs and those of any children. If the assets built up during the marriage are insufficient to meet reasonable needs, property that might otherwise have been treated as separate can become relevant. I would be cautious of anyone promising that a particular asset is automatically ring-fenced before the facts have been examined.

2. What about an inheritance or a gift from my family?

Holly: An inheritance or third-party gift is often described as non-matrimonial property because it was not generated by the couple’s shared endeavour. That distinction can be important, particularly where the inheritance has been kept separate, the marriage is shorter and the matrimonial assets are sufficient to meet both parties’ needs.

But an inheritance is not protected simply because of where it came from. How it has been used matters. If inherited money has been paid into a joint account, used to buy or improve the family home, invested in a jointly owned asset or relied upon to support the family over many years, it may be harder to argue that it should remain separate. The court may regard it as having become part of the matrimonial economy. Timing, value and the parties’ intentions can all be relevant.

The practical point is to preserve clear records showing the source and subsequent treatment of inherited funds. That is not about hiding money — full and frank disclosure is essential — but about enabling the court and both parties to understand the asset’s history.

3. If I owned a house or business before the marriage, is it safe?

Holly: Pre-marital ownership is relevant, but it is not a complete shield. For example, a property may have been brought into the marriage by one spouse but later become the family home. The matrimonial home is often treated differently because of its unique characteristics: it is the place where family life has been centred, and the court will usually regard it as part of the matrimonial assets to be shared, regardless of whose name appears on the title. The court will look at what happened in practice rather than stopping at legal ownership.

By contrast, a property that was owned by one party before the marriage and has remained genuinely separate throughout the relationship is less likely to be shared on divorce. That distinction can be important, but it is fact-sensitive. The court will want to understand how the property was used, whether either party contributed to it, and whether both parties’ needs can be met without sharing it.

Businesses require equally careful analysis. The court does not usually want to damage a viable company or disrupt trading relationships. However, business interests are part of the owner’s financial resources and may need to be valued. The real questions often concern what proportion of the business value existed before the marriage, what growth occurred during it, whether value can be extracted without damaging the business, and how a fair settlement can be structured. Early specialist valuation and tax advice can be critical.

4. Can a trust, overseas account or pension be kept outside the settlement?

Holly: Holding an asset through a trust or in another country does not make it invisible. A trust is not automatically treated as belonging to a beneficiary, but the court can examine the trust’s terms, the beneficiary’s access to distributions and the way trustees have responded to requests in the past. Depending on the evidence, a trust may be regarded as a financial resource. Trustees may need their own advice, particularly where the trust is offshore.

Overseas property, investments and bank accounts must also be disclosed. Jurisdiction and enforcement can add complexity, but location alone does not remove an asset from consideration.

Pensions are sometimes overlooked because they do not feel like money available today. They can nevertheless be among the most valuable assets in a case. The court can make pension sharing orders, and expert input may be needed to compare different schemes properly. A decision to offset a pension against the family home should be made carefully: £1 of pension is not necessarily equivalent to £1 of immediately available capital.

5. What can someone do now if protecting an asset is important to them?

Holly: Start with early, realistic advice. A properly prepared pre-nuptial or post-nuptial agreement can be highly influential, although it is not currently automatically binding. The strongest agreements are entered into freely, with sufficient time, independent legal advice and proper financial disclosure, and they make fair provision for both parties’ needs and any children.

Good financial housekeeping also helps. Keep documents evidencing the source of pre-marital or inherited wealth, avoid unnecessary mixing of separate and joint funds, and take coordinated advice before restructuring ownership. Transferring assets, placing them into a trust or moving money offshore when separation is contemplated can create serious problems. It may be challenged, reversed or treated as evidence of an attempt to defeat a claim. Full, frank and ongoing disclosure is non-negotiable.

Speak to JMW

If you are worried about protecting an inheritance, business, trust, pension or property acquired before marriage, early advice can make a significant difference. JMW’s Family team can help you understand how the court is likely to view the assets in your case, what evidence may be needed, and which settlement options are realistic. We regularly work with valuers, accountants, tax advisers, trustees and overseas lawyers where additional expertise is required.

The right strategy will depend on your particular circumstances, so taking tailored advice at an early stage can help you make informed decisions and avoid steps that may later weaken your position.