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CRITERIA FOR FINANCIAL ORDERS
How Does the Court Decide on Financial Orders?
The main statute governing what criteria the
Court’s should use to determine financial issues is contained
in Section
25 of the Matrimonial Causes Act 1973.This
section has been amended substantially since it was introduced
in 1973. Essentially the Act states that the Court must make
such order as is reasonable. The word “reasonable” is commonly
used in various areas of the law but a difficult word to define.
The question of what is reasonable is difficult to stipulate
as each case must be assessed on it’s own facts. Section 25
sets out the matters which the Court must have regard to in
deciding division of matrimonial assets. It is not possible
for a client to simply read Section 25 and work out what a
Court would award in any given case. How these principles
are applied in practice would only be reasonable guessed by
someone familiar with this area of the law and how the Courts
arrive at their decisions. The balancing of the considerations
under section 25 can be a very complex exercise in order to
arrive at an order which is fair and reasonable to both parties.
The Section 25 factors which the Court
must have regard to are :-
• Income, Earning Capacity, Property
And Other Financial Resources which
each of the parties to the marriage has, or is likely to have
in the foreseeable future, including in the case of earning
capacity any increase in that capacity which it would be reasonable
to expect a party to the marriage to take steps to acquire.
• Financial Needs, Obligations And
Responsibilities which each of
the parties has or is likely to have in the foreseeable future.
• The Standard Of Living Enjoyed
During The Marriage. The parties
cannot expect to maintain the same standard of living however,
the courts will try to avoid a significant drop in standards
eg the wife of a millionaire will not be expected to live
on an income level equivalent to state benefits.
• The Age of the Parties and Length
of the Marriage. Clearly a wife
making no financial contributions in a 1 year marriage is
not going to be in the same position as a wife of 20 years
who has looked after the house.
• Physical Or Mental Abnormalities
If Any. A husband with a disability
which requires medical attention or results in early retirement
may be ordered to make a reduced provision for his wife since
he will need to make provisions for himself which a fit and
health husband who can work until 65 would not have to do.
• Contributions which
each of the parties has made, or is likely in the foreseeable
future to make, to the welfare of the family, including “contributions
in kind” such as looking after the home or caring for the
family. For example if a wife gives up a career to bring up
the children then her contribution may be seen as similar
to that of the husband who has continued to work and has contributed
financially to the family.
• Conduct of
each of the parties, if that conduct is such that “it would
in the opinion of the court be inequitable to disregard it”.
These days conduct is rarely taken into consideration. The
fact that a husband committed adultery is not going to count
against him in determining the financial issues. The conduct
is only rarely taken into account in extreme cases where it
may affect the financial position of the parties. Eg where
a party has deprived a spouse of an asset by fraud or siphoned
off joint savings.
• The Value Of Any Benefit, Which
Will Be Lost on the Divorce. This
would include loss in pension rights or widows benefit. The
court will look at ways of equalising the parties’ positions.
This is an area of law on which you
will require professional advice and guidance.
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