One of the most essential parts of dissolving a marriage is the division of matrimonial property. Matrimonial property is that acquired individually by either spouse or jointly by the couple during the subsistence of the marriage.
Other misconception most people have about the division of matrimonial property is that each party keeps what they acquire after the marriage breaks down, or that matrimonial property will be shared equally.
This article provides an overview of what the court considers during the division of matrimonial property.
Non-matrimonial property cannot be the subject of court proceedings for division of matrimonial property.
Types of property that does not constitute matrimonial property are:
- Property that a party received by gift to that party individually;
- Property acquired by a party prior to the marriage, or property exchanged for property acquired by a party prior to the marriage;
- Property acquired by a party following a Court Judgment of Legal Separation;
- Property excluded by a valid written agreement of the parties (prenuptial agreement); and
- The increase in value of property during the marriage that falls under categories a-d above
It is however upon the owner of the property to prove that any property is not matrimonial property
The above property may however be converted into matrimonial property. When it is established that such property is not matrimonial property then it shall be subject to division by court.
Such conversion happens under the following circumstances:
- Gifting or jointly titling non-marital property in both parties’ names
- Commingling of non-marital property
- Applying marital income to payment of loan on non-marital property
Once the court has determined what non-marital property is and what matrimonial property is, it may divide matrimonial property between the parties.
The court is required to make an equitable, and not necessarily equal division of matrimonial property between the parties. The following factors guide the court in making the equitable division:
- The contribution by each spouse to the purchase or upkeep of the property, including the contribution of a spouse as a homemaker
- The conduct or misconduct of either party during the marriage
- The care and custody of the children of the parties
- The present financial circumstances of each party at the time of dissolution, including the preference for awarding the marital home or right to live therein for a reasonable time to the party having custody of the children
- The value of the non-marital property retained by each party
None of the above factors is weightier than the others. More so, those are not the only factors the court may consider, but other factors that arise during the hearing may influence the court’s decision on division of matrimonial property. What the factors above do is give a good basis for the court to make further considerations.
The clean break principle is now popular in court rooms.
It is therefore important to seek advice from your lawyer before going to court. While you are in court, also make sure that your interests are represented by a lawyer. We are ready to assist in such circumstances. When you are ready, call and schedule an appointment so that we can give advice relevant to your facts.
BY SAMALI BITALA
This article appears in our law newsletter Vol 12 Issue 1 of December 1st, 2017. To receive The Deuteronomy in real time, click HERE