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Thursday, May 22, 2025

Divorce and the 50/50 split

by

Pavitra Ramharack
673 days ago
20230719
Pavitra Ramharack

Pavitra Ramharack

Marvin Smith

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.

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