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Property settlement after couples part
Law School student
The need for property settlement arises following divorce proceedings, separation of common-law husband and wife, or where there is a dispute between husband and wife over property or property acquired outside the marriage or common-law union. This article briefly outlines the law as it relates to the settlement or division of property after divorce or separation proceedings in the High Court.
What the court can order
The court may issue one or more orders directed at settling the division of property at any time after divorce or separation proceedings have begun, or when an order of divorce, nullity of marriage or judicial separation has been granted.
One such order is for a party to the marriage to transfer to the other party or to any child of the family the property specified by the court. A party to the marriage is a person who took part in the marriage; that is a husband or wife. The court may order that property be transferred to a person specified in the order for the benefit of the child. The party transferring usually retains a part interest in the property that would go back to him or her when the child’s interest has come to an end. “Interest” refers to a legal share in a property.
An example of another order is one that may specify that the property, to which a husband is entitled, be made available for the benefit of the wife and children or any of them. An order of the court may even vary the interest in a property that was settled before marriage, by a will or another testamentary document.
How the court decides on the order
In deciding if to grant an order and what type of order to grant, the court takes all the circumstances of the case into consideration. As it relates to husband and wife, the court considers the income, the ability to earn, property and other financial resources which each party has or is likely to have in the near future, their age and how long they were married.
The court also looks at:
• the standard of living enjoyed by the family before the breakdown of the marriage
• the financial needs, obligations and responsibilities each party has or is likely to have in the near future
• whether either party has any physical or mental disabilities
• how each party contributed to looking after the home and caring for the family.
The aim of the court, in the process of settling the division of the property, is to place the parties as close as is possible, having regard to their behaviour, to being in the financial position they would have been in if the marriage had not broken down and each had properly carried out his or her financial obligations towards each other.
This column is not legal advice. If you have a legal problem, you should consult a legal adviser. Co-ordinator: Roshan Ramcharitar
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