What factors does the court look at when it shares property upon divorce?

The court has an extremely wide discretion regarding the granting of an order for the division, apportionment or distribution of the assets of the spouses in divorce proceedings.

Section 7(1) of the Matrimonial Causes Act [Chapter 5:13] (‘the Act’) provides the court with authority to make an order with regards to the division, apportionment or distribution of the assets of the spouses including an order that any asset be transferred from one spouse to the other.

The rights claim by the spouses in terms of section 7(1) of the Act are dependent upon the exercise by the court of a broad discretion. Consequently, the courts will have regard to the following factors as set out in section 7(4) of the Act:

1. The income – earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future;

2. The financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future;

3. The standard of living of the family, including the manner in which any child was being educated or trained or expected to be educated or trained;

4. The age and physical and mental condition of each spouse and child;

5. The direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties;

6. The value to either of the spouses or to any child of any benefit, including a pension or gratuity, which such spouse or child will lose as a result of the dissolution of the marriage;

7. The duration of the marriage; and in so doing the court shall endeavour as far as is reasonable and practicable and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses.”