Tem­pu Ne­fer­tari

Tem­pu Ne­fer­tari

Hugh Wood­ing

Law School stu­dent

The need for prop­er­ty set­tle­ment aris­es fol­low­ing di­vorce pro­ceed­ings, sep­a­ra­tion of com­mon-law hus­band and wife, or where there is a dis­pute be­tween hus­band and wife over prop­er­ty or prop­er­ty ac­quired out­side the mar­riage or com­mon-law union.This ar­ti­cle briefly out­lines the law as it re­lates to the set­tle­ment or di­vi­sion of prop­er­ty af­ter di­vorce or sep­a­ra­tion pro­ceed­ings in the High Court.

What the court­can or­der

The court may is­sue one or more or­ders di­rect­ed at set­tling the di­vi­sion of prop­er­ty at any time af­ter di­vorce or sep­a­ra­tion pro­ceed­ings have be­gun, or when an or­der of di­vorce, nul­li­ty of mar­riage or ju­di­cial sep­a­ra­tion has been grant­ed.

One such or­der is for a par­ty to the mar­riage to trans­fer to the oth­er par­ty or to any child of the fam­i­ly the prop­er­ty spec­i­fied by the court. A par­ty to the mar­riage is a per­son who took part in the mar­riage; that is a hus­band or wife. The court may or­der that prop­er­ty be trans­ferred to a per­son spec­i­fied in the or­der for the ben­e­fit of the child. The par­ty trans­fer­ring usu­al­ly re­tains a part in­ter­est in the prop­er­ty that would go back to him or her when the child's in­ter­est has come to an end. "In­ter­est" refers to a le­gal share in a prop­er­ty.

An ex­am­ple of an­oth­er or­der is one that may spec­i­fy that the prop­er­ty, to which a hus­band is en­ti­tled, be made avail­able for the ben­e­fit of the wife and chil­dren or any of them. An or­der of the court may even vary the in­ter­est in a prop­er­ty that was set­tled be­fore mar­riage, by a will or an­oth­er tes­ta­men­tary doc­u­ment.

How the court­de­cides on the or­der

In de­cid­ing if to grant an or­der and what type of or­der to grant, the court takes all the cir­cum­stances of the case in­to con­sid­er­a­tion. As it re­lates to hus­band and wife, the court con­sid­ers the in­come, the abil­i­ty to earn, prop­er­ty and oth­er fi­nan­cial re­sources which each par­ty has or is like­ly to have in the near fu­ture, their age and how long they were mar­ried.

The cour­tal­so looks at:

�2 the stan­dard of liv­ing en­joyed by the fam­i­ly be­fore the break­down of the mar­riage

�2 the fi­nan­cial needs, oblig­a­tions and re­spon­si­bil­i­ties each par­ty has or is like­ly to have in the near fu­ture

�2 whether ei­ther par­ty has any phys­i­cal or men­tal dis­abil­i­ties

�2 how each par­ty con­tributed to look­ing af­ter the home and car­ing for the fam­i­ly.

The aim of the court, in the process of set­tling the di­vi­sion of the prop­er­ty, is to place the par­ties as close as is pos­si­ble, hav­ing re­gard to their be­hav­iour, to be­ing in the fi­nan­cial po­si­tion they would have been in if the mar­riage had not bro­ken down and each had prop­er­ly car­ried out his or her fi­nan­cial oblig­a­tions to­wards each oth­er.

This col­umn is not le­gal ad­vice. If you have a le­gal prob­lem, you should con­sult a le­gal ad­vis­er. Co-or­di­na­tor: Roshan Ram­char­i­tar