What are ancillary matters in divorce?
Once the marriage has been deemed to have been irretrievably broken down, the judge will grant an interim Judgment of Divorce. The next stage is to settle ancillary matters, such as:
· custody, care and control of children (if any);
· maintenance of spouse and/or children; and
· the division of matrimonial assets.
It is crucial to note that under the law, it does not matter who is at fault for the dissolution of the marriage when it comes to ancillary matters.
Let’s examine some of the common ancillary matters.
1. Custody, Care and Control & Access
When a parent is granted custody of a child, that parent is in charge of making all the major decisions in the child’s life. Joint custody, as opposed to sole custody, is often granted to allow both parents have a say in making such decisions.
In a joint custody situation, the child will live with the parent who is granted care and control, as that parent will also make all the day-to-day decisions that affects the child.
When deciding on the issues such as custody and care and control, the interests of the child is of paramount consideration.
The Court may also grant access rights to the parent without care and control of the child, and set aside time for that parent to spend time with the child.
2. Maintenance of children and spouse
In order to ensure that parties are able to support themselves post-divorce, the Court may order one party to maintain the child and/or the other party. The maintenance amount may either be made on an instalment basis or as a lump sum.
i) Children
The Women’s Charter provides that it is the duty of the parent to maintain or contribute to the maintenance of the child of the marriage. The maintenance of the child is usually sought by the parent with the care and control of the child.
ii) Spouse
The Women’s Charter also provides that a Court may order for the maintenance of the wife or an incapacitated husband. In making such orders, the Court will consider factors such as the standard of living of the parties during the marriage and the age and salary of the parties.
3. Division of Matrimonial Assets
What are matrimonial assets?
These are assets acquired during the marriage. They do not include “gifts” or “inheritance” to one party, provided that the “gifts” and “inheritance” have not been substantially improved by the other party.
Matrimonial assets acquired before the marriage may also be included if they are:
· used or enjoyed by one or both parties or at least one of the children for shelter, transportation, household, education and recreation purposes;
· substantially improved during the marriage by the other party or both parties.
When it comes to dividing matrimonial assets, the Court does so in a just and equitable manner. Circumstances such as the extent of the contributions made by each party in improving or maintaining the matrimonial assets and the needs of the children of the marriage are taken into consideration when the court is dividing the assets.
The following is a list of the factors stipulated in the Women’s Charter that the Courts will consider when dividing matrimonial assets.
The contributions (direct financial or indirect) made by each party;
The needs of children;
Debts incurred by either party for the benefit of the other party or the child of the marriage;
Any agreements between the parties on division of assets;
Any support given by one party to the other for the benefit of his/ her career; and
Any exclusive rent free occupation of the matrimonial home by one party.