At the Ancillary Stage of the divorce (after the Court grants the interim divorce), the Court will have to decide how the Matrimonial Assets are to be divided between the parties by making orders as to the division of the assets and the proceeds of the sale of the assets.
Under the Women’s Charter, Matrimonial Assets consist of:
- Assets acquired before or during marriage
- By one or both parties to marriage
- Ordinarily used or enjoyed by parties or children
- For shelter, transportation, household, education, recreational, social and aesthetic purposes;
- Assets substantially improved during marriage by one or both parties to the marriage.
Assets that are excluded are:
- Assets acquired by gift or inheritance
- Gift or inheritance not substantially improved during marriage by either party or both parties
In considering how the assets are to be distributed, the Court will take into account the following factors:
1. Extent of Contribution
The Court will consider the extent of the contributions made by each party whether the contribution is financial (direct contributions) or non-financial (indirect contributions)* towards obtaining, improving or maintaining the particular asset.
*Indirect contributions include:
- Maintaining the property (By cleaning, repairing etc);
- The extent of the contributions made by the parties to the welfare of the family, including taking care of the household or caring for the family or any aged or infirm relative or dependant of either party, as decided in case law; and
- Giving of assistance or support which aids the other party in the carrying on of his or her occupation or business.
2. The needs of the children of the marriage
The Court will take into account the needs of the children of the marriage and to whom the care and control of the children have been given to.
3. Agreements between the parties prior to divorce
The Court will also take into consideration agreements made between the parties prior to the divorce. One example of such an agreement include pre-nuptial agreements.
4. Financial independence of parties after divorce
The Court will also take into consideration the working abilities and qualifications of the parties in dividing the matrimonial assets.
5. Debts undertaken by parties
Debts undertaken by parties towards the joint benefit of both parties or for the benefit of any child of the marriage would be also considered by the Court in division of the matrimonial assets.
6. Other considerations
In addition to the above considerations, the Court can also, in relevant cases, take into consideration:
- Financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- Standard of living enjoyed by the family before the breakdown of the marriage;
- Age of each party to the marriage and the duration of the marriage;
- Any physical or mental disability of either of the parties; 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.
After taking into consideration these factors, the Court will usually apply a “Global approach” where both the party’s financial contributions for each asset are totalled up, and then calculated as a percentage of both parties’ financial contributions for all the assets.
Following this, the Court may make any one or more of the following orders in dividing the Matrimonial Assets:
- Sale of property and proceeds to be divided;
- Allocate shares in a matrimonial asset that is jointly owned by both parties in an amount the Court considers just and equitable;
- A matrimonial asset or any part thereof to be vested in either party;
- For any matrimonial asset, or the sale proceeds thereof, to be vested in any person to be held on trust for such period and on such terms as may be specified in the order;
- Postponing the sale or vesting of any share in any matrimonial asset, or any part of such share, until such future date or until the occurrence of such future event or until the fulfilment of such condition as may be specified in the order;
- Grant to either party, for such period and on such terms as the court thinks fit, the right personally to occupy the matrimonial home to the exclusion of the other party; and
- Payment of a sum of money by one party to the other.