Decisions on settlement in divorce cases

The seven factors that our court takes into account in actions for financial relief and property adjustments in a divorce come from the 1973 Act of England. Our laws have retained a “tailpiece” which the British have since deleted from their laws. It is essentially the objective behind the court’s duty. The court has the duty to exercise its powers so “as to place the parties, so far as it is practicable and having regard to their conduct, just to do so, in the financial position in which the they (the spouses) would have been if the marriage had not broken down and each had properly discharged his or her financial obligation and responsibilities towards the other.”{{more}}

This could be difficult where the matrimonial assets are limited, because there would not always be enough to put the spouses in the position they “would have been if the marriage had not broken down.” The pooling of resources certainly improves the standard of living, but dividing reduces it. It is possible to achieve this objective where the assets are extensive.

Our laws, like those of England, do not provide any distinction between marital property and other property as obtains in some jurisdictions, such as Scotland and New Zealand. The Domestic Relations Act of New York maintains the distinction. It defines marital property as all property acquired by either or both parties during the marriage and before the start of matrimonial action and it regards gifts and property inherited during the marriage as “separate property.” The Equitable Distribution law contained in the Act requires marital property to be distributed equitably (fairly).

Lord Nicholls of Birkenhead, in the House of Lords’ judgment of White v White (2000), acknowledges the problem with inherited property and property owned before marriage, in the absence of statute. He feels that property of this nature represents a contribution made to the welfare of the family by one of the parties to the marriage and that the judge should take it into account. He further states that the judge must decide how important it is in the particular case, the nature and value of the property and the time when and circumstances in which it was acquired. Judges here are likely to give unequal shares where such property is present.

In deciding a case, the judge has to look at the evidence in the light of the statute and case law. In one case, the judge saw it fit to give equal shares because there was an understanding between the contributing spouses that the share of each would be equal. Even though there was no verbal communication on such issues between the spouses, an inference concerning the shares was drawn from their conduct during the marriage. In another case, the trial judge gave the husband 70 per cent and the wife 30 per cent of the value of the matrimonial home. On appeal, the decision was varied to give equal shares to the parties, as the judges felt that both had made significant contributions even though there were no supportive documents. Case law has shown that equal shares might be reasonable in some cases, but not in all cases. According to Lord Nicholls, “as a general guide equality should be departed from only if, and to the extent that there is good reason for doing so.”

Ada Johnson is a solicitor and barrister-at-law.

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