Features — 12 August 2017 — by Audrey Matura-Shepherd
Right to the Point

Matrimonial property … division upon divorce

Matrimonial property is a critical area of the law, which few married persons consider before getting into a marriage. I myself was not aware of the intricacies of this area before I first got married because when you fall in love it seems common sense falls out of your brain! But now I know that before marriage, when getting “marriage counselling”, a series of the sessions should address the legal aspects of matrimony and not just the spiritual aspect or the family aspect. This is especially critical given that marriage, in law, is really a legal contract that you enter into and being that it is governed by laws, then every wise adult must know about the law that will govern this contract impacting on the very intimacy of their life.

Moreover, any prudent business person knows that you should always get independent legal advice before entering a contract, so why should a marriage contract require less? On the contrary, it should be mandatory that you get legal advice about the rights, duties, obligations and disadvantages of marriage before marrying; the subject matter is the very essence of your private life. And if for no other reason, it should be mandatory, to avoid the potential hardship, detriment, pain and loss, that one suffers upon going through a divorce and not realising the problems encountered when going through this process. Divorce in and of itself can be so traumatic, and then having to deal with the loss of financial and home security makes it even more devastating and nerve-wracking!

Property owned before marriage

The legal principle is that any asset, be it land, shares, bank accounts, vehicles, and like material items that you owned before marriage, is really yours personally and not part of the matrimonial assets. This stands to reason, because why would you have to divide with your partner, upon divorce, those items you already owned on your own before you got married? That would be unfair either way. However, the problem arises, where a married person may have owned a lease property before marriage and while married that lease was converted to title, and then investment was made into said property, like the building of a house or even a business on it. This gets complicated, because the person may have owned the land itself while unmarried, but the development of the land, which has increased its value, is as a result of the matrimonial partner’s input, be it directly or indirectly. I have seen too many of these cases and painfully, often the other party, who helped to convert that once not so valuable property into a most valuable asset by the home or business built on it, seems to think he/she has no interest.

Well, all is not lost, because while the land may remain the personal belonging of the legal owner, the value of the building or business on it, is matrimonial property; that is, it’s an asset obtained during the marriage. Of course the person seeking to claim said interest against the legal owner, must show his or her contribution, because if the partner cannot show real input, then there is nothing to claim. Things to show would be that you made a loan or are paying the loan for the house or business, or that you paid all the other household bills so as to free up your partner’s income to pay the loan used to build the house or the business.

In those instances the court is called upon to declare the portion of the other partner’s interest in the overall assets, but the court requires very good evidence upon which to make such determination. This is just fair, because what was subsequently built or developed on the bare lease land may be far more valuable than the land itself. Of course, too often those claiming did not keep receipts, or records, nothing tangible to show their contribution and so the claim fails because as many say, when they got married they trusted and they never thought that one day they would have to be proving their contribution… so learn from now to keep receipts, records or any documentation that helps to prove your contribution! Now many like to say, “land claim house,” but do not know that said common-law principle can be defeated by the principles of equity through the evidence that can be presented to show the direct or indirect contribution of the other partner.

However, whatever material belongings are clear-cut the assets of either partner before marriage, cannot then be included in the matrimonial assets. It is basically the saying, “What is yours is yours and what is mine is mine,” but only before marriage. After marriage the rule is what you get or I get or we get together during the marriage, and it can be shown that either contributed in making it possible, either in monetary or non-monetary contribution, then must be shared. Now the sharing may not be necessarily 50-50, but that may be the starting point.

Disposition by Will and Testament

Another area of critical importance when dealing with property before marriage, is the Will and Testament made before marriage. What many do not know is that whatever Will is made before marriage is only valid up to the day before marriage, since once married, the mere act of a marriage nullifies said Will making it an invalid Will. The only exception being where in the Will the testator/testatrix (person making the Will – testator for male and testatrix for female) states he/she is making said Will in contemplation of marriage. By so stating, the effect of this is to ensure that even after marriage the Will is still valid, since you are basically saying that you are making the Will knowing that you will be getting married, but wanting this Will to remain valid even after marriage.

One potential problem, however, is where the testator/testatrix says in the Will made in contemplation of marriage, that the residuary of my estates goes to my son Karl (child of the previous marriage), then after he/she enters his/her new marriage, he/she is able to accumulate even more assets, which he/she did not even contemplate when he/she made the previous Will. Then it may be that items which his/her new spouse helped to accumulate during this new marriage, are not going to said new spouse but to the residuary of his/her estate, where the beneficiaries are only that spouse and/or children of the previous marriage. This is the case, unless upon getting new assets the testator/testatrix does not put it in the name of the new spouse or new children of the new marriage or creates a joint ownership so it remains with the surviving spouse, regardless of any Will. But since one never knows when he/she will die, it is critical that these legal issues are dealt with in a timely manner.

It is likewise important for married persons to know their rights and obligations and to especially know how to manage and administer their estate and do some real estate planning, keeping in mind those who are lawfully most entitled to share in the benefits of whatever material fortune they accumulated.

In said Will, sometimes the wife-to-be is already provided for, as she is the contemplated wife, thus it makes sense that the Will remains valid. Many times, however, these types of Wills are made where the person is a divorcee that will re-marry and so he/she wants to ensure that the assets from the previous marriage remain with the ex-wife and children of the previous marriage. The now divorced spouses may have made a mutual Will, which ensures that what they got during the marriage goes to the other spouse for the benefit of the children, should either die, and vice versa.

The problem this type of Will poses is that in the residuary clause, which addresses the assets the testator/testatrix has not yet obtained or know of at the making of the said Will, will then go to whomever he/she states as the beneficiary of the residual estate, and the residue can be the assets he/she obtains in the new marriage. Then the problem further arises where the surviving spouse decides to re-marry having obtained all of his/her spouses’ asset under his/her Will. The dilemma would be that his previous Will would be deemed invalidated by the new marriage, and the assets of the deceased spouse, if not yet distributed to the children of said marriage, may be within the reach of the new spouse, not as matrimonial assets, but should said spouse die without a new Will ensuring the assets of the first marriage go to the children of that first marriage. Yes, it could get complicated, but that is why ignorance of the law is no defence! It is not little the distress that has been caused by adults not ensuring that their legal affairs are in order.

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