The Matrimonial Property Act, or the Family Property Act, govern the distribution of matrimonial property upon marriage breakdown.
Normally, an Action for Divorce will include a claim for division of Matrimonial Property if a division of matrimonial property is required.
There are no hard and fast rules as to how the Court will divide the Matrimonial Property if the parties are unable to agree on how to do so and there are many pitfalls to catch the unwary.
It is possible for the spouses to agree to divide the Matrimonial Property and to reduce the agreement into a written form. However, the written agreement will only be valid if each spouse has acknowledged in writing, apart from the other spouse that:
a) the spouse is aware of the nature and the effect of the agreement;
b) the spouse is aware of the possible future claims to property the spouse may have under the Act and that the spouse intends to give up these claims to the extent necessary to give effect to the agreement, and
c) the spouse is executing the agreement freely and voluntarily without any compulsion on the part of the other spouse.
The acknowledgement must be made before a lawyer and the parties must make their acknowledgements to different lawyers.
As of January 1, 2020, legislation which deals with the division of property acquired by unmarried couples upon the ending of their relationship came into force that, essentially, provides for the division of "family property" in a similar way to how matrimonial property is divided. This is available to those couples whose relationship meets the requirement of them being "adult interdependent partners." In addition, it is possible for former partners/spouses to make a claim for division of property under the law of trust.
As time goes on, less and less people will be able to rely upon the provisions of the Matrimonial Property Act and, instead, will have to rely upon the Family Property Act