FACTORS FOR DIVISION OF MATRIMONIAL ASSETS
The court will not automatically divide the matrimonial assets “half and half”. The court will make an order to divide the matrimonial assets in such proportions as it thinks is “just and equitable”.
Under section 112 of the Women’s Charter, the court will have to divide the matrimonial assets between the parties in just and equitable proportions.
The court will take into account the following factors for division of matrimonial assets:
- 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;
- any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party;
- 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 helps the other party in the carrying on of his or her occupation or business.
Other factors for division of matrimonial assets the court may also consider are:
- the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
- the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- the standard of living enjoyed by the family before the breakdown of the marriage;
- the age of each party to the marriage and the duration of the marriage;
- any physical or mental disability of either of the parties to the marriage;
- the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family; and
- the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage that party will lose the chance of acquiring.
The court will not automatically divide the matrimonial assets “half and half”. The court will make an order to divide the matrimonial assets in such proportions as it thinks is “just and equitable” (i.e. what is fair), having regard to the above factors.
There are certain other legal principles that the Court adopt for division of the matrimonial assets.
The courts’ philosophy of marriage is that it is an equal partnership. It recognises that a marriage is not a business where, generally, parties receive an economic reward commensurate with their economic input. It is a union in which the husband and wife work together for their common good and the good of their children. Each of them uses (or should use) his or her abilities and efforts for the welfare of the family and contributes whatever he or she is able to. The partners often have unequal abilities whether as parents or as income earners but, as between them, this disparity of roles and talent should not result in unequal rewards where the contributions are made consistently and over a long period of time.
The courts will use the ‘broad-brush approach’ in division of assets by highlighting that mutual respect must be accorded for spousal contributions, whether in the economic or homemaking spheres, as both roles are equally fundamental to the well-being of a marital partnership.
In long Single-Income Marriages, the precedent cases show that our courts tend towards an equal division of the matrimonial assets.
In cases involving Dual-Income marriages, the court will follow a structured approach consisting of 3 broad steps. These 3 broad steps are:
- Express as a ratio the parties’ direct contributions relative to each other, having regard to the amount of financial contribution each party made towards the acquisition or improvement of the matrimonial assets;
- Express as a second ratio the parties’ indirect contributions relative to each other, having regard to both financial and non-financial contributions; and
- Derive the parties’ overall contributions relative to each other by taking an average of the two ratios above, keeping in mind that, depending on the circumstances of each case, the direct and indirect contributions may not be accorded equal weight and one of the two ratios may be accorded more significance than the other.