Hollywood movies have somehow convinced us as a society that upon marriage 50 per cent of our assets automatically become that of our spouse and upon divorce all assets are equally divided and distributed. I believe almost every divorce consultation I have had, has started with the question of whether they are about to lose half of everything.
Most of those consultations are followed by the question of whether all assets can be transferred to siblings or relatives or sold simply to deprive the other party of a share.
Let’s clear some of these assumptions and concerns.
There is no clear-cut answer about a 50/50 split in a divorce as it surrounds several factors. What can be said with certainty is no, there is no automatic 50 per cent right as soon as marital vows are exchanged.
Should married couples elect to place their spouse’s names on land, bank accounts, vehicles or any other asset, then upon divorce or even without a divorce their spouse is entitled to what was given whether it be a 50 per cent share or a quarter share.
An argument cannot be made that it is a gift and must be returned due to divorce.
The court also views a gift as exactly that, a gift. Once a gift regardless of value has been gifted, upon divorce the court will not order its return simply because you feel that the person is no longer deserving of this gift.
So to make it clear, during a Hindu marriage ceremony it is somewhat traditional to gift the bride five pieces of gold jewelry that become hers, divorce does not necessitate that it would be returned. On your spouse’s birthday, you gift them a vehicle registered in their name; you cannot upon divorce decide to take it back.
In deliberating on the division of assets upon divorce the court considers several factors. Section 27 of the Matrimonial Proceedings and Property Act contains several factors that a court will consider when making orders.
These factors include the earning capacity of the parties, the financial needs, the standard of living which was enjoyed, the age of the parties and duration of the marriage, physical or mental disability, and the parties’ contribution during the marriage. The court in considering these factors will also consider the parties’ conduct.
It is important to note that in considering the contribution of the parties, the court does not only consider income but, in terms of homemakers, their role in looking after the children of the family, even considering elderly parents, the care of the home itself and the time they have put into contributing in other non-financial ways.
It may be safe that marriages which are considered as long may benefit from a more equal division of assets than short-term marriages.
This would be due to the years of contribution by the parties in creating their specific standard of living and building their assets together when compared to a short-term marriage where the parties had not started to properly invest in their future.
Over the years I have been involved in matrimonial matters where people were blatantly dishonest about assets, income, savings and other information which would have allowed the court to ascertain their asset value in awarding settlement to their former spouse. I have also had people attempt to transfer property to ensure that it would not become subject to their divorce proceedings.
Our courts and the experience and intelligence of our judicial officers are capable of seeing above these actions. Even our legislators in drafting the law were well aware of people’s attempts to conduct business in such a way as to deprive their spouse.
Section 44 of the act that any transactions or dispositions conducted within three years of applying for divorce, which, the court believes was done to defeat claims for property settlement can be dealt with by the court.
In essence, the court can be empowered to set aside certain land transactions and even make declarations and orders concerning financial standings when there is clear evidence that attempts were made to hide assets. It should be noted that the court does have the power to summon financial institutions and attorneys are capable of having land searches done to determine the transferring of assets.
Instead of opting to hide assets when the sad reality of some marriages occurs, it may be more prudent to consider assets and how they should be held before marriage. There is legal advice that can be sought on how parties can safeguard assets and all within the legal framework.
In issues concerning property settlement–and while this may be a bitter pill to swallow–it is sometimes easier to be honest with those who you have retained to give you legal guidance and consider settlement discussions so that parties may be able to divide assets without necessarily having a Court make orders which leaves the parties unsatisfied.
We have formed a new trend where we spend considerable time, energy and money planning a wedding, but, rarely spend the same energy considering the marriage and all the pros and cons.
Just as engaged couples seek spiritual guidance for their marriage and consultations on venues, music etc, consider before the date considering your assets, how it is to be dealt with in marriage and what should happen should there be a divorce.
Elderly parents, who upon the announcement of an engagement are quick to gift their property, should also consider what happens upon divorce to the property that has been gifted.
By no means can I cover all the scenarios of assets or divorce as each person’s case is different. Yet, it seemed important to share an understanding of what can be considered in a property settlement to do away with the myth that it is automatically an equal share upon divorce.
