TODAY I RESPOND to a request to explain how the matrimonial property is divided on divorce.
On the breakdown of a marriage, the property of the parties is usually dealt with as part of an ancillary application for a declaration and/or alteration of interest in the property.
The actual distribution of the property will ultimately depend on many factors, including:
(1) the duration of the marriage;
(2) the contribution of the parties to the acquisition, conservation or improvement of the property; and
(3) the fact that one party may have care and control of an infant child or children of the marriage.
In the Barbados Court of Appeal decision of Proverbs vs Proverbs (2002), the then Chief Justice Sir David Simmons, among other things, set out the correct approach a court must take when faced with an application for an alteration of interests in property.
Sir David said: “The proper approach involves a process of three steps:
(i) The net property of the parties must be identified and valued by the court.
(ii) The respective contributions of the parties within the terms of Section 57(3) of the Family Law Act must be considered and evaluated.
(iii) The section 53(2) factors so far as relevant must be considered and evaluated.”
The first thing the court must do in proceedings for alteration of property interests is to determine what property is owned by each of the parties to the marriage at the time of the hearing.
One reason for this is that the court must not make an order altering the interests in property unless it is satisfied that it is just and equitable to do so. Generally a court will not be able to know what is just and equitable unless it is aware of all the property that each party owns.
It must be emphasised that at this stage, it is irrelevant how or when the property was acquired – that is whether before marriage, during marriage, or before separation or after separation; whether the property was purchased or whether it was inherited. All property ought to be disclosed.
Once the property has been identified it must then be valued. The net value is what is required. Therefore, any encumbrances on must therefore be deducted. For example, if a dwelling house is valued at $400 000 and there is mortgage of $100 000, then the net value is $300 000.
It should also be noted that the time for assessment of the value of property is usually the date of the hearing. If a matter is protracted, it may be necessary for the property to be revalued.
After ascertaining the value of the property the court must then take into account the following:
“(a) The financial contribution made directly or indirectly by or on behalf of a party or a child to the acquisition, conservation or improvement of the property, or otherwise in relation to the property;
(b) The contribution made directly or indirectly to the acquisition, conservation or improvement of the property by either party, including any contribution made in the capacity of home-maker or parent;
(c) The effect of any proposed order upon the earning capacity of either party.”
After considering the parties’ respective contributions to the value of the property, the court shall then take into account, so far as relevant, the factors identified in Section 53(2) of the Family Law Act, which include:
“(a) the age and state of health of each of the parties;
(b) the income, property and financial resources of each of the parties, and the physical and mental capacity of each of them for appropriate gainful employment;
(c) 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;
(d) the financial needs and obligations of each of the parties;
(e) the responsibilities of either party to support any other person;
(f) the eligibility of either party for a pension, allowance or benefit under any act or rule, or any superannuation fund or scheme, or the rate of any such pension, allowance, or benefit being paid to either party.”
As you can see, there are several factors which a court must consider before deciding the share to which a party to the marriage is entitled.
Next week I shall consider how the above factors can influence a decision in a particular 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.