Division of Matrimonial Assets
Divorce is undisputedly one of the most stressful life events one can go through and one of the worst aspects of it is seen when it is time to divide the matrimonial assets. Many couples find themselves fighting hammer and tongs to secure assets which they previously would not have dreamed of being important or of value. Hence, when there is no agreement on how the assets are to be divided, the court has the power to order a division of the matrimonial assets in such proportions as
the
court thinks just and equitable. In deciding this, the court will look at numerous factors including the following:
- the extent of the contributions made by each party in money, property or work towards acquiring, improving or maintaining the matrimonial assets
- any debt owing or obligation incurred or undertaken by either party for their joint benefit or for the benefit of any child of the marriage
- the needs of the children (if any) of the marriage
- the extent of the contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependant of either party
- any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce
- the giving of assistance or support by one party to the other party (whether or not of a material kind), including the giving of assistance or support which aids the other party in the carrying on of his or her occupation or business.
In deciding on the division, the Court will need to look at whether or not a particular asset falls within the ambit of a “matrimonial asset”. A matrimonial asset is defined as:
- a) any asset acquired before the marriage by one party or both parties to the marriage
- i. ordinarily used or enjoyed by both parties or one or more of their children while the parties are residing together for shelter or transportation or for household, education, recreational, social, or aesthetic purposes; or
- ii. which has been substantially improved during the marriage by the other party or by both parties to the marriage; and
- b) any other asset of any nature acquired during the marriage by one party or both parties to the marriage, but does not include any asset (not being a matrimonial home) that has been acquired by one party at any time by gift or inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the marriage.
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