Statute

Before a court makes an order, it has to look at a checklist of considerations. These are set out in Section 25 of the Matrimonial Causes Act 1973. These factors are listed below but provide scant guidance as to how the Courts apply the factors. The case law provides us with assistance in this regard and in recent years we have seen some major changes in the way the Court approaches cases. These cases are listed following the section 25 factors. By and large the Court’s main aim is to achieve ‘fairness’, however, within that the Court has a very wide discretion to decide what is fair.

The Section 25 factors are:

This Section says that it should be duty of the Judge in deciding the financial cases to have regard to:

a) all the circumstances of the cases;

b) first consideration being given to the welfare of any child of the family who has not obtained the age of 18.

In addition, the Court will have regard to the following matters:

a) the income, earning capacity, property and other financial resources which of 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, in the opinion of the Court, reasonable to expect the parties of the marriage to take steps to acquire.

b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.

c) the standard of living enjoyed by the family before the breakdown of the marriage.

d) the age of each party to the marriage and the duration of the marriage.

e) any physical or mental disability of either of the parties to the marriage.

f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family.

g) the 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.

h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit (for example, a pension) which by reason of dissolution or annulment of the marriage, that party will lose the chance of acquiring.

The Case Law

White v White [2000] was decided by the House of Lords and set out two principles to be used as a guide. The first being that the financial and domestic contributions of the parties to a marriage must be treated as being equal. So whatever the division of the roles between husband and wife, their contribution to the marriage, and to the family assets, should be seen in equal terms. The second that the Court should measure it’s conclusions against ‘the yardstick of equality.’ This did not presume a 50/50 division of assets. In most cases simply dividing the assets in half does not necessarily achieve true equality or fairness. There is a clear distinction between equal division of capital and equality of outcome.

Miller v Miller; McFarlane v McFarlane was decided by the House of Lords and whilst it confirmed the principles in White v White it set out three more principles to be taken into consideration when dividing the assets. They said that future Judges should consider (1) the needs generated by the relationship between the parties; (2) compensation for relationship generated disadvantage; and (3) sharing the fruits of the marriage with the overall objective to give each party an equal start on the road to independent living.

Charman v Charman this time in the Court of Appeal reviewed the three principles above and provided guidance on how the principles should be applied.