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WHEN two people are in love they are capable of making many great sacrifices for each other.

Yet after getting married, the relationship can turn sour and each party then tries to squeeze as much as possible from each other. And in such circumstances decisions made out of genuine goodness can later be regretted.

A reader who calls himself “Wong” finds that he is in such a predicament. He says that after getting married he bought a house and was encouraged by his wife to put the house in her name as she was entitled to a housing loan at very preferential rates.

Wong agreed but the down payment and all the instalments were paid by him.

The marriage did not work out and they are now getting a divorce.

Whilst Wong is prepared to have the assets distributed in a fair manner, his wife says the house is her property and that he is not entitled to any part of it. Wong wants to know where he stands.

In the case of Wong, the relevant law would be the Law Reform (Marriage & Divorce) Act 1976 and in particular Section 76(4) which deals with the property aspect of matters when a divorce takes place.

This section provides that “the court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired during the marriage by the sole effort of one party to the marriage or the sale of any such assets and the division between the parties of the proceeds of sale.”

Of course, in exercising these powers the court has to take into account various factors such as the extent of the contribution made by the other party who did not acquire the assets but contributed to the welfare of the family by looking after the home or caring for the family.

Thus a husband or the wife may be the sole breadwinner whilst the other spouse looks after the home and the children. Husbands who are home makers have been referred to as “house husbands”. The party who looks after the home and family does not contribute directly to the acquisition of the assets but assists in allowing the other partner to do so.

Another aspect is the needs of the minor children of the marriage. Subject to those considerations the court may divide the assets or proceeds of sale in fair proportions but in any case the party by whose effort assets were acquired will usually receive a greater proportion.

These assets acquired during the marriage are referred to as matrimonial assets. But “matrimonial assets” is not defined in the Act. Guidance, however, can be obtained from statements made in the English case of Wachtel vs Wachtel. As said by Lord Denning M.R.: “The phrase ‘family assets’ is a convenient short way of expressing an important concept. It refers to those things which are acquired by one or other or both of the parties, with the intention that they should be continuing provision for them and their children during their joint lives, and used for the benefit of the family as a whole. It is a phrase, for want of a better, used by the Law Commission, and is well understood. The family assets can be divided into two parts:

i) those which are of a capital nature, such as a matrimonial home and the furniture in it;

ii) those which are of a revenue-producing nature, such as the earning power of husband and wife.

The matrimonial home is usually the most important capital asset.”

What, therefore, is the position of the husband when the matrimonial home is in the name of the wife who now says it is all hers?

The wife cannot claim that the property belongs to her.

This is because clearly it was transferred into her name not for the purpose of giving it to her but merely to facilitate the utilisation of the loan.

Therefore, it is held by her as a matrimonial asset and not in her own right. The transfer of the property from the husband to the wife in such a situation would be a mere device to enable her to utilise the cheaper loan.

The position would be quite different if the husband had the intention of transferring it to her as a gift at the very outset.

The situation would also be different if the wife had inherited the property from her parents or other relations or received it as a gift from someone else. In such a case, the property would not be part of the matrimonial assets.

In such an event it could be said that the property was not acquired with the intention that it should be and continued to be a provision for the couple and their children during the joint lives and used for the benefit of the family as a whole.

It will, therefore, be seen that the principles of law that apply have to be viewed in the light of the facts of the situation which include the desire and intention of the parties.

On a different note it it has to be said that though the above discussion applies to non- Muslims, those who profess the Islamic faith would be governed by provisions in the Syariah Law which also reflect a similar spirit.