IN LAST WEEK’S ARTICLE on the division of matrimonial property on divorce, I highlighted the fact that all property is within the court’s jurisdiction, whether acquired before or during marriage, or before or after separation.
Today I consider some of the factors that can impact on the court’s decision. Two are the length of the marriage, and the contribution of a party as a homemaker and parent.
In one of the early local cases decided under the Family Act, the facts were that the marriage had lasted about 16 years; five children were born during this period. The parties’ main asset was land purchased in the name of the husband and a house erected thereon substantially through funds contributed by him.
The wife’s main contribution was that she raised to maturity four children. Although she worked, it was established that she took the responsibility for the children.
The court decided that based on contributions to the acquisition of the property, she was entitled to 15 per cent. However, having regard to the length of the marriage and her role as homemaker and parent, she was awarded a 50 per cent share in the property.
This case highlights two factors that can have a significant impact on the division of property. Where a marriage is a long one, the division of property is likely to be equal. Also, where there are children of the marriage who have been the primary responsibility of one parent, usually the mother, this will have a significant impact on division of the property.
Apart from the contribution made as a homemaker and parent, the court is required to consider, among other things, “whether either party has the care and control of a child of the marriage or union other than a marriage, who has not attained the age of 18 years”.
Therefore, after the court has considered the contribution that a party has made to the acquisition, conservation or improvement of the property, it has a further duty to determine whether any further adjustment should be made having regard, among other things, to the fact that one party had the care and control of infant children of the marriage.
An example of an Australian case which bears some similarity to the Barbadian matter described above is the case of Bremner v Bremner (1995).
Here the parties were married for 22 years and had two children. The wife had worked for most of the marriage and was the primary caretaker of the children. The court divided their assets equally, including a piece of land valued at $220 000, which was acquired by the husband seven years prior to the marriage.
The comments of Nicholson C.J. on appeal are worth noting. He remarked: “Property cases should not, in most cases, be decided on a strict mathematical basis. Due to the fact that this marriage subsisted for 22 years, both parties worked constantly and acquired modest assets, it is difficult to argue with a judgment that divides the assets equally.”
The effect of the length of the marriage on the assessment of the entitlement of the parties to the matrimonial property is illustrated by the following passage from Crawford v Crawford (1979), a decision of the Full Court of Australia relied upon by the trial judge in Bremner v Bremner:
“In short, counsel argued that the amount of the husband’s original contribution of capital should be extrapolated proportionately to the inflationary growth of the real estate. This may be a persuasive argument if the marriage had been of short duration. However, it was of a comparatively long duration – something in the excess of 19 years. In our view, the longer the duration of the period of cohabitation, the less weight need be given to the initial contribution of capital by either spouse at the beginning of the marriage.
“It became, in our view, increasingly difficult as the period of cohabitation lengthens, to justify placing a special value on a single item such as an initial cash contribution made many years before and treating it mathematically, when indeed there are so many other facets of marital contribution which become equally, if not more, deserving of attention.
“The contribution of assets by each party of the marriage is always, of course, a factor to be taken into account, but we see the significance of the initial contribution gradually diminishing with the passing of the years. The rate of diminution and, for that matter, the significance of the initial contribution, are matters which will vary according to the circumstances of each case.”
Cecil McCarthy is a Queen’s Counsel. Send your letters to Everyday Law, Nation House, Fontabelle, St Michael. Send your email to cnmcc@caribsurf.com