This is an extensive and large report regarding the feasibility of legislation that, upon dissolution of marriage, would give each spouse the right to an equal share in the assets accumulated during the marriage other than by gift or inheritance from outside sources. Three major proposals for change are judicial discretion, community of property, and deferred sharing. This report analyzes the committee’s majority and minority views on these proposals. Regarding judicial discretion, the law could simply authorized the court to divide the property of a married couple in any way which it thinks fair and equitable. This would give the court the broadest power. A second approach would be to emphasize a goal at marriage breakdown by placing each spouse on a sound financial footing for the future with consequent reduction in or elimination of the need for continuing payments for support. Finally, the law could give to the courts the power to distribute property between husband and wife but require them to have regard for certain factors in exercising it. Community of property is the opposite of separation of property (also called deferred sharing). Under community of property, the husband and wife own equal shares. Under the deferred sharing, each spouse would during marriage be separate as to property and free to deal with it, though there would be some safeguards against a spouse stripping himself or herself of property in order to defeat the claim of the other spouse. When the marriage ends or breaks down, the couple would share the economic gains which they made during the marriage, either by a money payment or by a distribution of property. In every case, the law could require the parties to share equally in the gains, or it could give the court some discretion to make a different distribution in exceptional cases.
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Matrimonial Property, Final Report 18
|TAGS:||community, divorce, family, gift, marriage, matrimonial home, Property, support|
Matrimonial Property Act, SA 1978, c 22 (now RSA 2000, c M-8), enacting a combination of the majority and minority proposals for the distribution of matrimonial property, and an extension of the recommendations on possession of the matrimonial home.