CHAPTER 4 — FINANCIAL PROVISIONS
CONSEQUENT ON MATRIMONIAL
PROCEEDINGS
Power of court to order division of matrimonial assets
112.—(1)  The court has power, when granting or subsequent to the grant of a judgment of divorce, judicial separation or nullity of marriage, to order the division between the parties of any matrimonial asset or the sale of any such asset and the division between the parties of the proceeds of the sale of any such asset in such proportions as the court thinks just and equitable.
(2)  It is the duty of the court in deciding whether to exercise its powers under subsection (1) and, if so, in what manner, to have regard to all the circumstances of the case, including the following matters:
(a)the extent of the contributions made by each party in money, property or work towards acquiring, improving or maintaining the matrimonial assets;
(b)any debt owing or obligation incurred or undertaken by either party for their joint benefit or for the benefit of any child of the marriage;
(c)the needs of the children (if any) of the marriage;
(d)the extent of the contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependant of either party;
(e)any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce;
(f)any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party;
(g)the giving of assistance or support by one party to the other party (whether or not of a material kind), including the giving of assistance or support which aids the other party in the carrying on of his or her occupation or business; and
(h)the matters referred to in section 114(1) so far as they are relevant.
(3)  The court may make all such other orders and give such directions as may be necessary or expedient to give effect to any order made under this section.
(4)  The court may, at any time it thinks fit, extend, vary, revoke or discharge any order made under this section, and may vary any term or condition upon or subject to which any such order has been made.
(5)  In particular, but without limiting subsections (3) and (4), the court may make any one or more of the following orders:
(a)an order for the sale of any matrimonial asset or any part thereof, and for the division, vesting or settlement of the proceeds;
(b)an order vesting any matrimonial asset owned by both parties jointly in both the parties in common in such shares as the court considers just and equitable;
(c)an order vesting any matrimonial asset or any part thereof in either party;
(d)an order for any matrimonial asset, or the sale proceeds thereof, to be vested in any person (including either party) to be held on trust for such period and on such terms as may be specified in the order;
(e)an order postponing the sale or vesting of any share in any matrimonial asset, or any part of such share, until such future date or until the occurrence of such future event or until the fulfilment of such condition as may be specified in the order;
(f)an order granting to either party, for such period and on such terms as the court thinks fit, the right personally to occupy the matrimonial home to the exclusion of the other party;
(g)an order for the payment of a sum of money by one party to the other party.
(6)  Where under any order made under this section one party is or may become liable to pay to the other party a sum of money, the court may direct that it must be paid either in one sum or in instalments, and either with or without security, and otherwise in such manner and subject to such conditions (including a condition requiring the payment of interest) as the court thinks fit.
(7)  Where, pursuant to this section, the court makes an order for the sale of any matrimonial asset and for the division, application or settlement of the proceeds, the court may appoint a person to sell the asset and divide, apply or settle the proceeds accordingly; and the execution of any instrument by the person so appointed has the same force and validity as if it had been executed by the person in whom the asset is vested.
(8)  Any order under this section may be made upon such terms and subject to such conditions (if any) as the court thinks fit.
(9)  Where the court, by any order under this section, appoints a person (including the Registrar or other officer of the court) to act as a trustee or to sell any matrimonial asset and to divide, apply and settle the proceeds thereof, the court may make provision in that order for the payment of remuneration to that person and for the reimbursement of that person’s costs and expenses.
(10)  In this section, “matrimonial asset” means —
(a)any asset acquired before the marriage by one party or both parties to the marriage —
(i)ordinarily used or enjoyed by both parties or one or more of their children while the parties are residing together for shelter or transportation or for household, education, recreational, social or aesthetic purposes; or
(ii)which has been substantially improved during the marriage by the other party or by both parties to the marriage; and
(b)any other asset of any nature acquired during the marriage by one party or both parties to the marriage,
but does not include any asset (not being a matrimonial home) that has been acquired by one party at any time by gift or inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the marriage.
Power of court to order maintenance
113.—(1)  The court may order a man to pay maintenance to his wife or former wife, or order a woman to pay maintenance to her incapacitated husband or incapacitated former husband —
(a)during the course of any matrimonial proceedings; or
(b)when granting or subsequent to the grant of a judgment of divorce, judicial separation or nullity of marriage.
[7/2016]
(2)  The court may make an order under this section regardless when the marriage was solemnised, whether before, on or after 1 July 2016.
[7/2016]
Assessment of maintenance
114.—(1)  In determining the amount of any maintenance to be paid by a man to his wife or former wife, or by a woman to her incapacitated husband or incapacitated former husband, the court must have regard to all the circumstances of the case including the following matters:
(a)the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
(b)the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
(c)the standard of living enjoyed by the family before the breakdown of the marriage;
(d)the age of each party to the marriage and the duration of the marriage;
(e)any physical or mental disability of either of the parties to the marriage;
(f)the contributions made by each of the parties to the marriage to the welfare of the family, including any contribution made by looking after the home or caring for the family; and
(g)in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage that party will lose the chance of acquiring.
[7/2016]
(2)  In exercising its powers under this section, the court is to endeavour to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other.
Power of court to order security for maintenance
115.—(1)  A maintenance order may provide for the payment of a lump sum or such periodical payment as the court may determine.
(2)  The court may, when awarding maintenance, order the person liable to pay such maintenance to secure the whole or any part of it by vesting any property in trustees upon trust to pay the maintenance or part thereof out of the income from that property and, subject thereto, in trust for the settlor.
Compounding of maintenance
116.  An agreement for the payment, in money or other property, of a capital sum in settlement of all future claims to maintenance, is not effective until it has been approved, or approved subject to conditions, by the court, but when so approved is a good defence to any claim for maintenance.
Duration of orders for maintenance
117.  Except where an order for maintenance is expressed to be for any shorter period or where any such order has been rescinded, an order for maintenance expires —
(a)if the maintenance was unsecured —
(i)on the death of either spouse or former spouse;
(ii)in the case of maintenance payable to a former wife — upon her remarriage; or
(iii)in the case of maintenance payable to an incapacitated former husband — upon his remarriage; or
(b)if the maintenance was secured —
(i)in the case of maintenance payable to a wife — on her death;
(ii)in the case of maintenance payable to a former wife — on her death or upon her remarriage;
(iii)in the case of maintenance payable to an incapacitated husband — on his death; or
(iv)in the case of maintenance payable to an incapacitated former husband — on his death or upon his remarriage.
[7/2016]
Power of court to vary orders for maintenance
118.  The court may at any time vary or rescind any subsisting order for maintenance, whether secured or unsecured, on the application of the person in whose favour or of the person against whom the order was made, or, in respect of secured maintenance, of the legal personal representatives of the latter, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.
Power of court to vary agreements for maintenance
119.  Subject to section 116, the court may at any time and from time to time vary the terms of any agreement as to maintenance made between husband and wife, whether made before or after 1 June 1981, where it is satisfied that there has been any material change in the circumstances and despite any provision to the contrary in any such agreement.
Maintenance payable under order of court to be inalienable
120.  Maintenance payable to any person under any order of court is not assignable or transferable or liable to be attached, sequestered or levied upon for, or in respect of, any debt or claim whatsoever.
121.  [Repealed by Act 18 of 2023 wef 16/01/2025]
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Last updated 9 Apr 2025
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