How the Court Divides Matrimonial Assets in Divorce?
Updated: May 12, 2021
Prior to the Amendment of the Law Reform (Marriage & Divorce) Act 1976 (the Act)
Before the amendment was made to the Law Reform (Marriage & Divorce) Act 1976 ("the Act"), matrimonial asset division is made between husband and wife in accordance to the financial contribution made to the acquisition of the property. Joint Effort
If the matrimonial asset is acquired during the marriage directly by the joint effort of both spouses then the court incline towards equality of division. However, equality does not mean that the court shall order equal division automatically but to lean towards equality by taking into consideration the nature and extent of the contribution made by the parties.
If the matrimonial asset is acquired during the marriage by the sole effort of one party to the marriage, the court may divide the assets or the proceeds of sale in such proportions as the court thinks reasonable; but in any case, the party by whose effort the assets were acquired shall receive a greater proportion.
This position has been depriving the rights and entitlement of the spouse who did not contributed directly to the acquisition of the property but who may have contributed to the family expenses or by looking after the home and family. It is also to be noted that the LRA 1976 (prior amendment) does not require the Court to consider the duration of the marriage. Hence if the contribution of a spouse over the years he/she has committed to the family is not required to be taken into account by the Court, despite several Judges have been seen to have taken this into consideration. Current Position of the Law (After the amendment of Law Reform (Marriage & Divorce Act) 1976) After the amendment of the Act, the court no longer need to see if the matrimonial asset is acquired by joint or sole effort to make a division of matrimonial asset.
The court shall incline to make an equal division of the matrimonial assets by taking into account both financial and non-financial contribution of both spouses, including taking care of the welfare of the family and duration of the marriage.
Our law is seen to have delivered fairness which put both spouses in the same position and will not create any bias in favor of the money-earner against the home-maker.
However, it does not mean that equality of division is mandatory. The court may depart from making an equal division to matrimonial assets.