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Wwhen the court looks at financial arrangements between married couples, or civil partners, the court has to take various factors into account under the Matrimonial Causes Act 1973 (as amended) when considering what order should be made.
Section 25 of the Act sets out that the court must consider all the circumstances of the case, and give first consideration to the welfare of any children of the family under the age of 18. This does not mean that the welfare of the child takes precedence over all of the other matters, but it is the first matter which the court should look at.
Income and Earning Capacity: You can expect the court to make an order on the basis of what people might reasonably expect to receive if they fully exploited their opportunities. If someone chose not to work when he or she could reasonably be expected to do so, or chooses not to take advantage of opportunities to earn or receive funds available to him or her, the court can make adverse inferences.
Earning capacity refers to existing opportunities. Potential looks at what it would be reasonable to expect someone to do to increase their earning capacity.
Property: Property includes all property owned by someone or property in which a person has an interest. It includes real property i.e. bricks and mortar, capital in bank accounts, endowment policies, investments,and personal property.
Standard of Living: The standard of living enjoyed by the family before the breakdown of the marriage.
Age and Length of Relationship: The age of each person and the length of the relationship.
Physical or Mental Disability: Any physical or mental disability of each person.
Contributions to Family Welfare: Contributions which each person has made or is likely to make in the foreseeable future to the welfare of the family, including looking after the home or caring for the family.
Conduct: The conduct of each person, if that conduct is such that it would be inequitable to disregard it in the opinion of the Court.
Loss of Financial Benefit: The value to each spouse of any benefit which one spouse because of the divorce will lose the chance of acquiring (most usually pension provision).
TThe aim of the court is to achieve fairness. The court has to consider an equal division of assets built up during the marriage (this can give rise to disagreement in itself), unless the marriage was of short duration, or the assets are not sufficient to satisfy capital needs, in particular re-housing. A key factor is the reasonable needs (especially housing needs) of people, and that often overrides any possibility of an equal division of assets.
Both people involved have an absolute duty to each other and to the court to disclose fully their financial position (and any significant changes during the case) so that a proper financial arrangement can be made. That is an ongoing duty which continues until an order is approved or made by the court.
That duty applies whether people are negotiating between themselves, through solicitors, through alternative dispute resolution, or the case is being dealt with by the court.
IIn all cases the court will consider whether a clean break should be made. The court will have to decide whether financial obligations between parties should be terminated immediately, or at a later date. Each case will depend on its own circumstances but it is likely that where there are minor children the court would at least make an order for nominal maintenance to be paid to the parent the children live with. The amount payable would be nominal (e.g. £1 per year), but the recipient would be entitled to apply to vary that payment upwards during the operation of the order if circumstances changed.
We can help guide you and help find an equitable solution. We are experts in these areas. Contact our specialist family solicitors David and Sarah now.
Remember Sarah will meet you out of office hours anywhere in the Wimborne, Poole, Bournemouth or East Dorset Areas.
Jordan Williams Law are specialists in their field. They practice family law in the Wimborne, Poole, Bournemouth and surounding areas. Contact them now.