The matrimonial property

Press, 21 February 1978, Page 12

The matrimonial property

The Matrimonial Property Act, 1976, brought about a considerable change in this area of the Law, and its effect is still far from settled by the courts.

Before the act came into being on February 1, 1977, the right of a wife to a share in the matrimonial property upon the breakdown of the marriage was comparatively slight.

It was common for the contents of the matrimonial home to be divided equally, although the court often had to decide whether one party had paid for more items than the other. The matrimonial home itself was divided equally between the parties if it was held in both their names and if it could be shown that this circumstance came about not merely for the raising of a loan on the property, br making it into a Joint Family Home. In many cases where the house was in the name of the husband alone, and also in some cases where it was in joint names but only because this was required by the Housing Corporation, a wife was excluded from any share in the house, or admitted only to a minor share.

Everything turned on the contributions made by each party, either to the house or to any other particular asset in dispute. The wages earned by a husband were always given more weight than the household and domestic services contributed by a wife, although the latter were taken into account. If the husband had business assets, or had purchased cars, boats, etc., from his earnings for himself the wife could only claim against these if she could show that she had contributed directly or indirectly to their purchase. The effect was generally that a wife was disadvantaged when matrimonial property was divided by the courts, and the attitude of the courts also tended to show a bias in favour of the husband cm many occasions. As a result of the 1976 act, several far-reaching changes were made. First, the matrimonial home is divided equally between the parties regardless of whose name it is held in, or who has contributed to it. Similarly, the contents of the house and any motor vehicles, caravans

or boats used principally for family purposes are divided qeually between the parties, again regardless of who has purchased them. If there is no matrimonial home actually owned by the parties, a capital sum equivalent to the fair value of such a house is assessed against the capital held by the parties, and divided equally between them.

The court, however, has power “in extraordinary circumstances” to make a division of house and chattels on other than an equal basis if equal sharing would be “repugnant to justice.” The courts have not yet decided what circumstances would be sufficiently extraordinary to justify an unequal sharing of these assets, and it is clear that such circumstances would be extremely rare.

All other property owned by either husband or wife, except property owned by them before the marriage, is matrimonial property under the 1976 act and is to be divided between them in terms of section 15, about which there has been, and will be, very extensive litigation. Such assets are shared equally between the parties, unless the contribution of one party to the marriage partnership has clearly been greater than that of the other.

Where this is the case his or her share of the matrimonial property shall be determined in accordance with the contribution of each party to the marriage partnership.

What “contribution to the marriage partnership” means has yet to be finally decided by the courts, but the decisions to date indicate that the section has no direct relation to financial contribution.

In other words, if each party to the marriage has done his or her best for it as a marriage, some decisions indicate that there will be an equal division

of assets regardless of the fact that a husband may have purchased or built up a farm property or commercial business entirely without any contribution from his wife. As long as she has done her part in the running of the household, caring for children, etc., some judges have held that she may have half the business or the farm without further debate. Other decisions tend to suggest that in such a case the husband would be given a more substantial share than his wife in such assets.

The Court of Appeal will no doubt set out guide-lines in due course, but it is clear already that the 1976 act gives a wife a far greater share in the assets of herself and her husband than she previously had. The thinking behind the act is close to the continental concept of “community of property,” in which all assets owned by either party are held to be owned equally between them after marriage, but it is possible that the courts will use the rather vague wording of the 1976 act to prevent farms or businesses being promptly sold off to enable a separated wife to be paid out. The conduct or misconduct of either party is specifically not taken into account unless it has actually affected the extent or value of the matrimonial property. How this will be applied in extreme cases, where, for example, a non-con-tributing wife deserts her farmer husband for the milkman, is yet to be tested; but Federated Farmers have already expressed public concern that farmers may be forced into selling productive properties in such circumstances.