Pro Bono: Division of Matrimonial Assets

This library guide collates relevant resources relating to ancillary matters concerning the division of matrimonial assets in a divorce. Ancillary matters also include other issues such as custody, care and control of children, and maintenance, but the focus here will be on division of matrimonial assets.

Overview

The law of division of matrimonial assets is statutory in origin, and its application is generally made ancillary upon the main application for divorce, judicial separation or nullity of marriage. Such powers of the Court to order for the division and sale of matrimonial assets upon termination of marriage lie under Part 10, s 112 of the Women's Charter 1961 (2020 Rev Ed). Both civil courts and the Syariah Court have concurrent jurisdiction over the division of matrimonial property for Muslim spouses, though the latter follows similar statutory guidelines found in AMLA's s 52(14).

The general principle underpinning the power of division is suggested by the author as a 'deferred community of property':

• Community of Property: Parties in a marital relationship are regarded to have contributed to the acquisition of property during the subsistence of their marital relationship regardless of who may actually have earned the money to pay for the property. They have equal power to deal with the property.
• Deferred: However, for the purpose of practicality, they have separate properties during the subsistence of marriage. The former only kicks in upon termination of the marital relationship.

Two major issues arise with respect to the division of matrimonial assets:

1. Identification of Matrimonial Assets: The definition of matrimonial assets is outlined in s 112(10) of the WC. 

(10)  In this section, “matrimonial asset” means —
(a) any asset acquired before the marriage by one party or both parties to the marriage —
(i) ordinarily used or enjoyed by both parties or one or more of their children while the parties are residing together for shelter or transportation or for household, education, recreational, social or aesthetic purposes; or
(ii) which has been substantially improved during the marriage by the other party or by both parties to the marriage; and
(b) any other asset of any nature acquired during the marriage by one party or both parties to the marriage,
but does not include any asset (not being a matrimonial home) that has been acquired by one party at any time by gift or inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the marriage.

2. Achieving a Just and Equitable Division of Assets: There is a common directive provided under ss 112(1) and (2) of the WC to achieve just and equitable proportions of division. In particular, s 112(2) outlines the circumstances in which the court considers in the exercise of its powers of division under s 112(1). 
   Some factors considered include the extent of contributions to monetary assets and to the welfare of the family, needs of children, prior agreements, rent-free occupation and s 114(1) factors regarding the assessment of maintenance, where relevant etc.

Source: Leong Wai Kum, Elements of Family Law, 3rd Ed (2018))