Chapter 6- Financial Orders

Question 1

What is mediation also known as?

Answer 1

ADR- alternative dispute resolution

NCDR- non- court dispute resolution

Question 2

What is mediation process?

Answer 2

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.

Question 3

When is mediation inappropriate?

Answer 3

A power imbalance between parties or where there has been domestic abuse

Question 4

What does PD 3A family procedure rules 2010 set out?

Answer 4

It is compulsory for the applicant if a financial order to attend a MIAM meeting with a mediator

Question 5

What is assessed in the MIAM meetings?

Answer 5

Whether the case is appropriate for ADR- May be exempt if there has been domestic abuse

Question 6

Can financial orders be granted whilst marriage exists?

Answer 6

Yes, but court powers are limited and orders are designed to be temporary.

Question 7

Which act allows judge to grant financial order in family court?

Answer 7

Domestic proceedings and magistrates court Act 1978

Question 8

Under what grounds of S1 DPMCA can a financial order be drawn?

Answer 8

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

Question 9

Types of orders under S2 DPMCA

Answer 9

Periodic payments
Lump sums

Financial orders cease to exist of person receiving finances remarried or either party dies

Question 10

What statue provides Statutory guidelines for the DPMCA?

Answer 10

S3 DPMCA

Question 11

What types of financial orders Can be granted under S2 DPMCA

Answer 11

Lump sums limited to £1000

Periodical payments

Question 12

When will the financial orders come to an end under S3 DPMCA?

Answer 12

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

Question 13

Consent orders for financial orders…

Answer 13

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

Question 14

Which statue provides financial guidelines for MCA 1973

Answer 14

S25 MCA

Question 15

What does S27 MCA allow

Answer 15

A judge to make financial orders for periodical payments or unlimited lump sums for failure to pay maintenance for spouse or children

Question 16

Can a financial order be made for judicial separation? If so how is it limited?

Answer 16

Yes, even though marriage exists it can be made but judge can not award an order to end financial ties as marriage still continues

Question 17

What can financial orders be made for under the MCA 1973

Answer 17

Income
Pensions
Property

Question 18

Under MCA 1973 which 8 orders are available at court

Answer 18

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

Question 19

What two types of orders are awarded if settlement of property order is awarded?

Answer 19

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

Question 20

What are the 9 factors of S25 MCA which the court use to help determine financial orders?

Answer 20

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

Question 21

What case and factors give recognition to PRE-NUPs

Answer 21

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.

Question 22

Are postnuptial and prenuptial agreements binding on the courts?

Answer 22

No - but they can be taken into account when making financial orders

Question 23

What further factors are considered if the financial order is for a child?

Answer 23

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

Question 24

What differences are there is the child receiving a financial order is a step child?

Answer 24

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

Question 25

What is a clean break order?

Answer 25

An order which means financially breaking ties at the end of a marriage (financial independence)

Question 26

When may a clean break order be awarded?

Answer 26

If the parties are young, have similar incomes and no children

Question 27

What 3 cases and their reasonings aid judicial guidance?

Answer 27

White v white- Wife argues that her genius brought the farm wealth and as such she should be compensated appropriately

Miller v Miller- gifts or earnings pre marriage will not be considered shareable unless parties cannot life without them

Charman v Charman- all property is to be considered

Question 28

What is the first point of call when creating financial orders?

Answer 28

To divide assets equally- unless weaker party needs more than half of the assets to financially provide