There are always misconceptions about how matrimonial assets are divided in a divorce. Many people tend to think that matrimonial assets are divided equally 50:50 in a divorce. There is an assumption that this is the entitlement. This may be the correct presumption in some jurisdictions like Australia, but in Malaysia, the courts have the power to order the distribution or division of the matrimonial assets acquired by the parties during the marriage through their joint efforts, in a manner the court deems fit.
The primary consideration the court will take into account would be how much the other spouse contributed to the acquisition of the matrimonial assets. Financial contributions being the most obvious, there are also other non-monetary contributions that would be taken into account. This could include factors like maintaining the household, and creating a secure and loving environment for the working spouse and the children. There are also some circumstances whereby one spouse may have had to make such sacrifices by leaving their career for the well being of the family. They would have then lost a reasonable amount of income that they could have generated had they not had to leave their job. The entitlement of the non-working spouse to the amount of EPF (KWSP) of the working spouse will also be considered, as this forms part of the matrimonial assets of the parties.
It is left to the courts to analyse and consider the significance of the non-monetary contributions made by the other spouse.
The court when deciding any financial orders for a spouse would have regard to these factors:
- The extent of the contributions monetary or non-monetary
- Any debts owing by either party
- The needs of the minor children, if any
- The financial needs, obligations and responsibilities of each party
- The standard of living enjoyed by the parties in the marriage
- Any loss of opportunity one spouse may have been subject to due to the marriage or divorce
Matrimonial assets include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts. For example, a house acquired by one spouse before marriage may have been significantly improved by the other spouse by renovating the kitchen of the said house or that spouse paying for the household expenditures during the period when both parties were residing in the house. Nevertheless, the party who made more monetary contributions and put in more effort to acquire the assets shall receive a greater proportion.
Where a spouse has brought considerable assets of their own into the marriage and that asset has never become part of the family finances (eg: inheritance), these assets do not form part of the matrimonial assets. This includes marriage jewelry given as gifts to the wife.
Deciding who should get what can be a challenge, even under the most amenable of situations, and if your divorce is contentious, then this can be especially complicated.
Have a question? Contact us.