When a marriage breaks down, there are other issues to be dealt with which are as a result of the marriage, or as the law puts it, “ancillary” to the divorce.
One of the ancillary matters is to do with property rights. The law which governs property rights upon a divorce sets out the factors the court must take into account in determining those rights:
- The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
- The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- The standard of living enjoyed by the family before the breakdown of the marriage;
- The age of each party to the marriage and the duration of the marriage;
- Any physical or mental disability of either of the parties to the marriage;
- The contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family; and
- The value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the divorce, that party will lose the chance of acquiring.
The court must exercise its powers as to place the parties, so far as practicable, and having regard to their conduct, in the financial position in which they would have been had the marriage not broken down and has each party properly discharged his/her financial obligations and responsibilities toward the other.
It used to be thought that when dealing with property after a divorce, the court was only to look at matrimonial assets, which were considered as being property acquired either during the marriage or in contemplation of the marriage.
Recently, Justice Godfrey Smith, SC, in a case decided in Grenada, Batcheler v Batcheler, made a clear ruling that assets acquired prior to a marriage and not in contemplation of the marriage might in fact acquire the character of matrimonial assets. That character, he said, is acquired when those assets are used for the benefit, enjoyment and maintenance of the life of the marriage.
Justice Smith’s decision is consistent with the approach of the courts over the years in dealing with division of property after a marriage in so far as the objective of the court is to achieve fairness between the parties.
What is fairness? Judges have, over the years, described the concept of fairness variously, for example: “an elusive concept”; “an instinctive response to a given set of facts”; “like beauty, [it] lies in the eyes of the beholder”.
- There is no mathematical formula to prescribe and or forecast the outcome of a property division application in the High Court; and
- Obtain proper legal advice on property matters when you decide to get married and, during the marriage, when you decide to acquire assets.
Grenada Bar Association