when married couples divorce or separate they must settle their property.
All the properties brought into the marriage, all the properties obtained during the marriage, and all the assets which can or will be realized from the properties of the marriage should be included in the settlement.
Usually, when people think of property and of settling properties during a divorce or separation, they merely think of assets that they can see and touch such as a house, a car, jewellery, and home furnishings. Some people think of cash the parties have deposited in the bank in a savings account. There are other kinds of properties that are intangible (which cannot be seen or touched), but are still considered properties which must be settled and divided between the divorcing spouses or separating partners.
What constitutes ‘property’ of the marriage are all items which have value in money or all items which are capable of being valued in terms of money. The property may be intangible but they are properties just the same. Anything that can be bought or sold is also considered ‘property’.
The interest earned by cash deposits and the interest which bank deposits are earning are one type of intangible property. The interest payable on a loan extended to others from the money of the marriage is also property. Shares of stock in a company are also intangible as shares are really part-ownership in a stock corporation. The value of the shares can be estimated for the purpose of dividing it between the spouses—they are properties.
If one of the parties to the marriage or de facto relationship is a lawyer and he is a partner in a law firm, his partnership is property. It has value and its value is capable of pecuniary estimation. As a partner, he has the right to receive a percentage of the profits earned by the partnership. The percentage of the profits represents the value of his co- ownership in the partnership. If he is a lawyer who is well-known in his field, his name is part of the firm’s goodwill or public reputation, thus, it has value as well. Keeping his name in the partnership might attract more clients. Thus, its use has value which can be estimated in terms of money.
If one of the spouses is a song writer, a playwright, an inventor or a best-selling author, the right to receive royalties is a type of property. Royalties are payments for the use of the songs he has written, the play he has authored, the invention he has patented or any material from the book he has published. The right to receive royalties is intangible but it can be bought, sold, transferred and assigned.
All the items for which value in money can be assigned is considered property of the marriage and it must be included in the settlement of the property of the marriage or de facto relationship.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.