Decade after Family Act amendment, property division rules still pending
The Act requires the Ministry of Gender to formulate regulations on the distribution of money and property by the courts.
Regulations required under the Family Act to govern the division of property acquired jointly by spouses during marriage have not been issued, despite the law mandating their formulation ten years ago.
A 2016 amendment to the Family Act empowers courts to divide property equitably before the dissolution of a marriage if both parties agree on the division. The Act also sets out factors for determining which property was acquired jointly by spouses. However, it does not specify the rules or criteria by which such determinations should be made. The law also does not require courts to resolve disputes between spouses over the valuation of property that is difficult to divide.
The Act requires the Ministry of Gender to formulate regulations on the distribution of money and property by the courts. The law lists seven matters that must be covered by such regulations and stipulates that the rules must be issued within six months.
However, ten years after the requirement came into force, the ministry has not published the regulations. The ministry could not be reached for comment.
Under the Act, the regulations are required to include:
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Criteria and procedures for determining property acquired separately by spouses prior to marriage and property acquired in separate names.
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Methods for determining property or money acquired jointly by spouses during marriage.
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Rules for determining the extent of work or expenditure made separately by each spouse to acquire property or money.
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Rules for determining the share or amount due to each spouse based on the duration of the marriage.
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Rules on the valuation of property and money acquired jointly during marriage.
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Procedures for recognising property and money acquired separately prior to marriage or in separate names if such property is acknowledged during the marriage and has increased in value or been improved.
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Procedures to be applied where property or money acquired jointly during marriage cannot be divided due to its indivisible nature.
Ali Sameer, a former High Court judge who has presided over family cases, said on social media that the absence of such rules and standards creates uncertainty in divorce proceedings. He said that individuals filing for divorce do not know how to proceed when raising claims over property and that the lack of regulations poses challenges in resolving such disputes.
