Marital property, also known as matrimonial assets, matrimonial property or even family assets, is very much a term of statute and family law. Every jurisdiction has taken it upon itself to adjust the ownership regime of property acquired by one or both spouses before or during their marriage.
This, in response to the drastic state of the common law which, historically, held the wife's property to become the husband's upon marriage. Indeed, the woman ceased to be a legal person upon marriage (not unlike Muslim law - see nashiza and nikah). It was only upon the death of the husband or divorce that the woman could retrieve whatever property she brought into the marriage or acquired throughout.
Under statutory reforms around the world, in both common law and civil law jurisdictions, a number of approaches have been implemented in regards to marital property. The standard is to implement either a separate property regime (property acquired by one spouse always belongs to that spouse) or community of property or community property regime (all property acquired during the marriage - except for gifts - is owned equally by both spouses regardless of title or contribution).
In Nichols, Justice Thomson of the Alabama Court of Civil Appeals wrote:
"A party's separate estate is that property over which he or she exercises exclusive control and from which the spouse derives no benefit by reason of the marital relationship. The separate estate of the parties in a divorce proceeding includes property owned prior to the marriage and property received by gift or inheritance during the marriage.
"Although marital property generally includes property purchased or otherwise accumulated by the parties during the marriage, it may also include the property acquired before the marriage or received by gift or inheritance during the marriage when it is used, or income from it is used, regularly for the common benefit of the parties during their marriage."
Most jurisdictions allow the court to redistribute marital property in any event, if the result would be unfair to one or the other, and for a variety of reasons. For example, in a separate property jurisdiction, a woman may sacrifice her career to raise the children and then, upon divorce, find herself without assets.
Further, some jurisdictions allow the spouses to contract-out of the statutory marital property regime by way of a marriage agreement or a pre-nuptial agreement.
To the extent that they reflect the relevant statute in the jurisdiction of the court, here are some definitions of marital property
In re Thomas:
"Under Arkansas law, marital property includes all property acquired by either spouse subsequent to the marriage, with certain exceptions not applicable in this case."At the time a divorce decree is entered, the court will distribute all marital property equitably, according to the guidelines established by statute.
"Generally speaking, property owned individually by one spouse or co-owned by both spouses may be classified as marital property subject to equitable distribution if that property has been acquired subsequent to the marriage and not specifically excepted by statute. Implicit in the statute is the concept that one party's rights to marital property owned by the other party do not vest until a divorce decree is entered and the court has distributed the marital property."
Smith v Smith:
"[S]ubject to certain statutory exceptions, marital property generally includes property purchased or otherwise accumulated by the parties during the marriage."
Schmitz v Schmitz:
"The first step in equitable division of marital property requires the trial court to determine what property is available for distribution; to accomplish this, the trial court must characterize assets as separate or marital property.
"The three primary examples of separate property are property acquired by one spouse before marriage, property acquired by gift, and inherited property.
"Assets acquired during marriage as compensation for marital services - most commonly salaries earned by either spouse during marriage - are considered marital assets...."
"Marital property includes all property acquired during the marriage, excepting only inherited property and property acquired with separate property which is kept as separate property."
"We have recognized that a spouse's premarital separate property can become marital through transmutation or active appreciation. Transmutation occurs when a married couple demonstrates an intent, by virtue of their words and actions during marriage, to treat one spouse's separate property as marital property. Active appreciation occurs when marital funds or marital efforts cause a spouse's separate property to increase in value during the marriage...."
"[T]he time and energy of both spouses during the marriage is to be considered in dividing marital property. A spouse should not be able to erase his or her contributions of time and energy from the marital estate by rolling them back into a business which he began before the marriage."
- Duhaime, Lloyd, Family Law
- Duhaime, Lloyd, Legal Definition of Separate Property Regime
- In re Thomas, 331 BR 798 (Arkansas, 2005)
- Nichols v. Nichols, 824 So. 2d 797 (Alabama, 2001)
- Schmitz v. Schmitz, 88 P. 3d 1116 (Alaska Supreme Court, 2004)
- Smith v. Smith, 959 So. 2d 1146 (Alabama Court of Civil Appeals, 2006)