What is ‘Matrimonial Property’?
Under the Malaysian family law, Matrimonial property refers to ‘the property that is jointly acquired by spouses of the marriage‘.
A married couple has the right to decide who gets what when it comes to separation. For example, the couple can choose to split it 50-50. In this circumstance, they can avoid going through the fuss of court proceeding. However, this is not always the flow of the story. In reality, there are always situations where the couples cannot reach agreement on the distribution part. This is understandable as some believe that they are entitled to a bigger share of the property because some people may think that they have contributed more.
Today, in distributing the matrimonial property upon divorce, the court will take into accounts the parties’ contribution through direct or indirect contribution before coming to a decision.
In situations where either party or both, disagree with the arrangement, the court has the power to order for division of matrimonial assets as in accordance to s.76 Law Reform (Marriage and Divorce) Act 1976.
So, what is classified as matrimonial assets under the defination?
Matrimonial assets consist of all immovable properties (i.e. matrimonial home, house, shop lot, land, factory etc.) and movable properties (i.e. monies (in deposits, EPF/KWSP, cars, shares, jewellery,) that are acquired during the marriage.
Bear in mind that this does not mean properties bought before the marriage is not considered as matrimonial assets. s.76(5) of Law Reform (Marriage and Divorce Act) 1976 is worded in a way that, if the assets owned before the marriage by one party but have been substantially improved during the marriage by the other party or by the joint efforts of the husband and wife, then such property will be considered as matrimonial assets.
In a way, it is saying that if the property is registered under your name or your spouse name solely, the property may still be reckoned as matrimonial property. Thus, you or your spouse may be able to gain a share on the property.
Under Law Reform (Marriage and Divorce Act) 1976, there are three categories of property, namely:
- Matrimonial property
- Non-matrimonial property
- Property acquired before marriage
MATRIMONIAL PROPERTY
The term ‘matrimonial property’ is not defined under the LRA 1976. However, the judge in Yap Yen Piow case defined the term “as property which is acquired by the joint effort of both parties to the marriage”. This means that any property that is acquired through the shared finances or effort of you or your partner during the marriage is classified as matrimonial property.
NON-MATRIMONIAL PROPERTY
The second type is ‘non-matrimonial property’, which refer to properties that are acquired by only one party to the marriage. This means that any property that is purchased by you or your partner alone is a non-matrimonial property.
PROPERTY ACQUIRED BEFORE THE MARRIAGE
The third type is rare as it involves property acquired before the marriage. This basically means that it takes into account the property you bought before you got married. However, the court can also consider this as matrimonial property “if it was substantially improved on during the marriage”, as provided by section 76(5).
In Malaysia, the courts have discretion when exercising its power in dividing matrimonial assets shall have regard to
- contributions by each party in terms of money, property of work towards acquiring of the assets;
- any debts owing by either party which were contracted for their joint benefit;
- the needs of the minor children, if any, of the marriage.
