Division of Matrimonial Assets

Here are some things you should know about the division of matrimonial assets:

What is considered a “matrimonial asset”?

• The following types of property are considered matrimonial assets:
  • The matrimonial home
  • Property that was acquired during the marriage
  • Property that was acquired before marriage which was:
    • Ordinarily used by the family
    • Substantially improved by both or other party
  • Gifts that have been substantially improved by both or other party
• Property that was acquired before the marriage does not otherwise constitute matrimonial assets

How will matrimonial assets be divided?

• The Court is empowered to o rder the division of any matrimonial asset according to an apportionment that is just and fair by giving adequate and appropriate weight to each party’s direct and indirect contribution towards the marriage:
  • Direct contributions include financial contributions made towards the acquisition or improvement of the matrimonial assets
  • Indirect contributions include efforts to improve or maintain the well­being of the family
  • The roles of the parties as financial­provider or homemaker are both equally recognised because both roles must have been performed equally for the marriage to continue or flourish

What factors are considered in the division of matrimonial assets?

• The Court will decide on how to divide / apportion the matrimonial assets after considering the following factors:
  • Contributions made by each party towards acquiring, improving or maintaining the matrimonial assets (e.g. income and capital investment)
    • The more contributions to the asset acquisition, the more the court is likely to award
    • At the very least, a party’s greater amount of contribution would justify a greater proportion being awarded to that party
  • Debt owed or obligation incurred / undertaken by one party for the joint benefit of both parties or their children
    • The Court may reduce the amount awarded to one party by the amount of the debt that was incurred by that party
  • Needs of the Children
    • For example, the needs of the children may require that the matrimonial property not be divided and that the children be allowed to live in the property until the youngest child is 21 years old ­ this occurs because the Court recognises that needs of the children are paramount
  • Contributions made by each party towards the welfare of the family (e.g. homemaker, caregiver for children / dependents)
    • This accounts for the non­financial contributions of the homemaker who helped to create and maintain a positive home environment
  • Agreement between the parties relating to the ownership and division of the matrimonial assets made in contemplation of divorce
    • Whether a prenuptial agreement will be recognised by the Court will depend on the unique facts of each case
  • Period of rent­free occupation (or other benefit) enjoyed by one party in the matrimonial home to the exclusion of the other party
  • Assistance or support (financial and non­financial) given by one party to the other party
    • This includes the assistance or support given by one party which has helped the other party carry on an occupation or business
  • Amount of maintenance paid to the former wife