Understanding the Law
May 6, 2005
Divorce – Part 4

Last week I started with the factors that the law provides for the guidance of the judge in making financial and property adjustment orders relating to divorce. As promised the remaining factors are given below:

1. The financial needs, obligations and responsibilities which each of the parties to the marriage has, or is likely to have, in the foreseeable future.{{more}}

This is very important in reaching a settlement. The judge will examine the needs of the parties and dependent children. All have needs for accommodation and maintenance. The law requires the needs of dependent children to be given first consideration. The court could order the matrimonial home to be transferred to the wife if she has custody of the children. In one case, the spouses themselves made a consent order for the half share interest in the matrimonial home belonging to the husband to be transferred to the wife in trust for the children. The husband was to continue to pay the mortgage and keep the house in a good state of repair. However, they also agreed that if she cohabits with a man in the matrimonial house then she must undertake the payment of the mortgage and the maintenance of the house.

2. The standard of living enjoyed by the family before the breakdown of the marriage.

This might be given the least attention by the court because it will be impossible where the resources of the family are limited, to maintain the standard of living that existed during the marriage. The expenses of maintaining two homes, where only one was maintained before, from the same joint income will inevitably lead to the fall of the standard of living. The same standard could only be achieved where there is a considerable amount of assets. The court will have to exercise caution as one party cannot be compensated because of the break down of the marriage.

3. The age of each party to the marriage and the duration of the marriage.

The ages of the parties and length of the marriage are important. The prospects for the older parties whose children are grown up and who are nearing retirement will be different to the younger spouses with children. For the older parties, both would have worked together to pool their resources over the years. If the matrimonial home is the only asset then it might have to be sold to afford accommodation for each party. On the other hand, the young mother with dependent children might be given the matrimonial home with certain conditions.

4. Any physical or mental disability of either of the parties to the marriage.

Disability will have implications for the earning power and the needs of the party.

5. The contribution made to each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the


This has implications for women who give up employment to take care of the home and children. Prior to this, the contribution of a wife was not recognized in a way as to give her a share in the assets. This recognizes the need for the contribution of the homemaker (whether man or woman) to be counted.

6. The value to either of the parties to the marriage of any benefit (for example, a pension) which by reason of the dissolution or annulment of the marriage that party will lose the chance of acquiring.

Where a party contributes to a pension fund during the marriage, that fund may be considered as an asset of the family.