Financial remedy proceedings arising from the divorce of OS (the wife) and DT (the husband) dealt with issues of non-matrimonial property and child periodical payments where the parties were sharing childcare. In this article Swati Somaiya reviews the judgment by His Honour Judge Hess in OS v DT [2025] EWFC 156 (B).
Background
Both parties in the marriage worked in finance in the City of London and met in the course of their professional lives. Having begun cohabiting in 2009, OS and DT went on to marry in 2014 and then separated in 2023, by which point they had three children aged 10 and younger.
After the separation, discussions about where the children would live were settled through mediation in early 2024, with both parties agreeing to split the time exactly equally. The children would stay with the wife on Monday and Tuesday nights, with the husband on Wednesday and Thursday nights, and they would alternate Fridays and weekends. School holidays would also be shared equally.
Matrimonial vs non-matrimonial property
As set out in JL v SL [2015] EWHC 360, “matrimonial property is the property which the parties have built up by their joint (but inevitably different) efforts during the span of their partnership” and “should be divided equally”. This starting point of dividing ‘matrimonial’ assets equally between the separating parties is known as the ‘sharing principle’.
A key point in dispute in OS v DT was which assets should be considered matrimonial. Noting in his judgment that it was “common ground that the husband has, over many years, managed and invested and held money and other assets of substantial value on behalf of his parents,” the judge also stated that “the arrangements in this regard have not been straightforward or transparent”.
Where the wife argued that all assets should be considered matrimonial unless clearly otherwise, the husband countered that some of his assets including his father’s home, the couple’s first family home bought in part using a loan from the husband’s parents and held wholly in his name, and an inheritance of £179,147 he had received from his mother after her death, should be considered non-matrimonial.
Working from the sharing principle as a starting point, the judge began by establishing that the husband’s father’s home was “plainly non-matrimonial property”. He also accepted the husband’s argument that the inheritance from his mother, despite having come during the marriage, was on “the balance of probabilities” used in his sole name and was also non-matrimonial.
The judge also concluded that assets accrued by the husband prior to the marriage (pension accrual) and following the parties’ separation (cash bonuses and restricted stock units) were similarly non-matrimonial. However, the judge ruled that proceeds from the couple’s first family home had become ‘matrimonialised’ and used by the family at large and would therefore be divided 50:50. He also ruled that “it would be unfair to exclude what has been saved from the husband’s monthly basic salary from the pool of assets to be shared”, as they were used pre-separation on family expenses.
Child periodical payments
Per the Matrimonial Causes Act 1975, the Family Court has the power to make a child periodical payments order in favour of one parent against the other, though the Child Support Act 1991 updated this with the provision that the court cannot make such a payment order where the Child Maintenance Service would have jurisdiction to make a maintenance assessment.
The wife sought £15,000 per child per year in child maintenance and for the husband to cover all school fees. The husband disagreed, arguing that only a periodical payments order on school fees was appropriate and that those costs should be paid equally via a shared capital fund.
After confirming that he had jurisdiction to make a child periodical payments order in OS v DT, the judge declined to do so on the grounds that both parents have sufficient funds to meet their needs, childcare was being divided equally and “the husband will shortly be redundant and have little or no earned income”. On considering the case as a whole, the judge did however conclude it would be “reasonable and fair” for the husband to pay the majority of the children’s school fees, deciding that a 75/25 split was appropriate.
Concluding comments
This summer has been an insightful one for establishing the parameters of ‘matrimonialisation’ of assets in financial remedy proceedings, with OS v DT followed by the Supreme Court judgment in Standish v Standish, which saw a record reduction in a divorce award upheld. The common thread is confirmation by the Family Court that non-marital assets will not be shared equally when the parties separate – what counts as ‘non-marital’ will vary case by case and depend on how the assets have been used and shared (or not) by the parties during the course of the marriage.
OS v DT also provides a view of how the court might rule in respect to child maintenance orders, and points towards a reluctance for periodical payments where both parents are in a similar financial position while sharing childcare equally.
