Chapter 6- Financial Orders Flashcards
What is mediation also known as?
ADR- alternative dispute resolution
NCDR- non- court dispute resolution
What is mediation process?
Impartial trained mediator will meet with parties, attendance is voluntary, parties themselves reach a decision. Mediator helps identify what the issues are, helps parties to resolve the issues in order to reach an agreement.
When is mediation inappropriate?
A power imbalance between parties or where there has been domestic abuse
What does PD 3A family procedure rules 2010 set out?
It is compulsory for the applicant if a financial order to attend a MIAM meeting with a mediator
What is assessed in the MIAM meetings?
Whether the case is appropriate for ADR- May be exempt if there has been domestic abuse
Can financial orders be granted whilst marriage exists?
Yes, but court powers are limited and orders are designed to be temporary.
Which act allows judge to grant financial order in family court?
Domestic proceedings and magistrates court Act 1978
Under what grounds of S1 DPMCA can a financial order be drawn?
The respondent has failed to provide reasonable maintenance for applicant or child
Respondent has behaved in such a way that applicant cannot be reasonably expected to live with them
Respondent has deserted applicant
Types of orders under S2 DPMCA
Periodic payments
Lump sums
Financial orders cease to exist of person receiving finances remarried or either party dies
What statue provides Statutory guidelines for the DPMCA?
S3 DPMCA
What types of financial orders Can be granted under S2 DPMCA
Lump sums limited to £1000
Periodical payments
When will the financial orders come to an end under S3 DPMCA?
If the person receiving the funds remarries
If either party dies
If the order granted is during the proceedings for the divorce, when the divorce is granted financial order ends
Consent orders for financial orders…
S6 DPMCA sets out consent orders can be agreed by both parties for periodical payments or lump sums. Unlike S2 DPMCA lump sums are not limited
Which statue provides financial guidelines for MCA 1973
S25 MCA
What does S27 MCA allow
A judge to make financial orders for periodical payments or unlimited lump sums for failure to pay maintenance for spouse or children
Can a financial order be made for judicial separation? If so how is it limited?
Yes, even though marriage exists it can be made but judge can not award an order to end financial ties as marriage still continues
What can financial orders be made for under the MCA 1973
Income
Pensions
Property
Under MCA 1973 which 8 orders are available at court
1) Periodical payments - s23 1A MCA
2) Maintenance Pending Suit- S22 MCA
3) Lump Sum Orders - S23 1C MCA
4) Transfer of property- S24 1A MCA
5) Settlement of Property- Ss24 1 B,C,D MCA
6) Sale of Property
7) Financial orders for children - S24 A MCA
8) Pensions
What two types of orders are awarded if settlement of property order is awarded?
Martin order- property cannot be sold until child leaves school or reaches certain age
Mersher Order- party is able to remain in the home unless they remarry, move or die
What are the 9 factors of S25 MCA which the court use to help determine financial orders?
1) Welfare of any children
2) Financial resources of the parties
3) Present and future financial needs, obligations and responsibilities of the parties
4) The standard of living enjoyed by the family before the breakdown of the marriage
5) Age of the parties and duration of marriage
6) Any physical or mental disabilities
7) Contributions made by the parties to the welfare of the family during the marriage or in future
8) Conduct if the parties
9) Any benefit the party may loose if the marriage dissolves
What case and factors give recognition to PRE-NUPs
Radmacher v Granatino
1) spouses must have entered into agreement freely
2) It would not be unfair to hold parties to the agreement at the time of the relationship breakdown.
Are postnuptial and prenuptial agreements binding on the courts?
No - but they can be taken into account when making financial orders
What further factors are considered if the financial order is for a child?
1) Needs of the child
2) Financial resources of the child
3) Any mental or physical disability
4) The standard of living enjoyed by the family prior to breakdown of marriage
5) Child’s past and future education
What differences are there is the child receiving a financial order is a step child?
1) how far had the party assumed responsibility for maintenance of the child
2) whether he knew the child was not his own
3) liability of any other person to maintain the child
