Protecting Children, Division Of Matrimonial Assets
Ancillary Matters in a Divorce
After both parties agree to a divorce, they still have to agree to what happens after the divorce. Issues relating to their children, maintenance, and matrimonial assets must be resolved. This article briefly explains several key terms:
This refers to who has the right to make the important decisions pertaining to the child. There are two types of custody:
The Court will allow both parents to collaboratively make decisions for the child on matters such as which school the child goes to, and the religion of the child.
The Court only allows the parent who has care and control over the child to make decisions pertaining to that child’s life. The other parent would be given fixed access to the child (usually on a weekly or biweekly basis).
Care and Control
The child will live with the parent who has care and control over him/herself. This parent will also take care of the child’s day to day needs. Usually, the Court will award care and control to the mother. It is only when the mother is deemed unfit to care for the child, perhaps due to lack of mental capacity stemming from a moderate to severe mental illness, or if the mother is found to abuse the child, that the father would be awarded care and control.
in general, when sole custody is granted to one parent, the parent who does not have care and control gets access. Access comprises periodic visits to the child (or, in the alternative, calls between parent and child), holidays, and other ways to maintain the relationship between the child and the parent who does not have access.
In deciding on which parent should get custody, care and control, and access, the court must consider the Welfare Rule: i.e. the court will decide based on what is in the best interest of the child. As this is the paramount consideration, any wishes of the parents are secondary.
Division of matrimonial assets
the first step in the division of matrimonial assets is to define what assets are matrimonial assets. This includes assets acquired before the marriage, but that are ordinarily used by the household, such as a family home or family car. It also includes assets acquired before the marriage but that are substantially improved upon during the marriage, such as renovations to a second home. It also includes any asset acquired during the marriage itself. Then, the court will consider several factors, such as the length of the marriage, and the parties direct and indirect, financial and non-financial contributions to the marriage. Finally, the court will make an order dividing the assets based on what is just and equitable.
Maintenance refers to court orders that a specific amount of money is to be paid to a certain party, either on a monthly basis, or in a lump sum. In other jurisdictions, this is known as alimony. Maintenance orders can be made to benefit an ex-wife, an incapacitated ex-husband, and children of the marriage. As the parent who has care and control of the child or children will have to bear the expenses relating to the children, usually the court will order the other parent give maintenance in respect of those children. As for maintenance for an ex-wife, the court will consider factors such as the ex-wife’s income and ability to find employment, as well as the financial position of the wife in light of the the division of matrimonial assets.
How we can help?
At Prestige Legal LLP, with our years of experience handling such matters, we will be able to advise you on the best way forward on your matter and help you avoid the potential pitfalls. We also understand that your matter is important, so come and meet us, our first consultation is free.