Chapter 6- Financial orders Flashcards
Which section of the FPR 2010 governs financial orders?
Part 9
Which section of the MCA sets guidelines for the court to impose financial orders
S25 MCA 1973
What are the factors considered for financial orders (9)
1) welfare of children and family S25(1) MCA
2) financial resources of the parties S25(2)(A) MCA
3) present and future financial needs, obligations, responsibilities of parties S25(2)(b)
4) standard of living enjoyed by family before breakdown of the marriage S25(2)(c) MCA
5) Age of the parties and length of marriage S25(2)(d) MCA
6) mental/ physical disabilities of the parties S25(2)(e) MCA
7) contributions made by the family, during marriage or in future S25(2)(F) MCA
8) conduct of the parties if that conduct is inequitable S25(2)(g) MCA
9) Value of any benefit that the party may loose chance of acquiring of marriage dissolves S25(2)(H) MCA
What type of finances are considered under financial resources?
Pension, insurance, inheritance, income, child care giving, future earnings, premium bonds, property,
What type of facts are considered for present and future financial needs?
Housing, bills, travel, food, upkeep of household, new families / income of second partner, education and health
What type of facts are considered for the standard of living enjoyed by the family before breakdown of the marriage?
Court will consider it may not be maintained, any fall in living standard is shared equally.
What type of facts are considered for age and duration of the marriage?
If you g and childless probably will get clean break, and won’t be awarded high settlements Miller v Miller
If old, vice versa
What type of facts are considered a party who has a physical or mental disability?
They may have lower capability of earning of greater needs
What type of facts are considered for contributions made by parties welfare of family during marriage and in future?
White v white - stay home parent contributions are equally as important
What type of facts are considered for conduct between the parties, if that conduct is inequitable to ignore?
Evans v Evans - case where lump sum was reduced as wife encouraged husband to commit suicide
What type of facts are considered for the value of any benefit which the party will loose the chance of acquiring if the marriage is dissolved?
Prenups are not binding despite ruling of Radmacher v Granatino
They will be following pending bill in government
What is the clean break principle
Where parties leave the marriage financially independent.
Delayed clean break can occur where periodical payments occur for a limited time then clean break from there
What did white v white establish
There is to be no discrimination with roles when deciding financial orders. Home makers and bread winners are equal and judges should check preliminary results against yardstick of equality
Which case is contradictory to white v white and why
Cowan v Cowan- husbands initiative and entrepreneurial intelligence make his financial contribution greater
What did miller v Miller; Mcfarlane v Mcfarlane establish
Periodical payments can be used by way of compensation to the party who has had a reduced income. I.e the home maker
What 6 types of orders are there
Periodical payments s23 MCA Secured payments Lump sum payments s23 MCA Property adjustment orders s24 MCA Trust of Land - Mersher / Martin order Pensions order
What are the benefits of a mesher order?
Light at the end of the tunnel for excluded party
Possibility of deferred equal division
Preserves home for children
When is a Martin order appropriate
If excluded spouse has a secure home else where
If older party has little to no earning capacity
What types of pension orders are there?
Pension sharing order s24B MCA
Pensions attachment order s25B-25C MCA
Off setting
What are family based arrangements?
Parents use the support of child maintenance options service to put a arrangement in place instead of resorting to statutory services available.
Who provides a service for child maintenance arrangements and enforcement of those arrangements?
CMS
What is the formula for CM
Gross weekly income - % per child (either 12/9%, 16/12%, 19/15%)
What is the appeal process for child maintenance payments
Referred to another CM officer
Tribunal
Upper tribunal
Court of Appeal
After fees are deducted, what percentage of the CMP is paid to the payee
96%
Who can make an application for financial order?
Parent or civil partner
Child over 18 that’s is applicable for it
Person child is living with under CA order.
Which part of the children’s act covers financial orders
s15 and Sch1 CA
What are the two procedures for FPR financial orders?
Standard procedure
Fast track procedure
What does s28(3) MCA state
If a party remarried after a decree absolute they will not be able to apply for financial provisions or property adjustment if they have not made a financial order prior to this point
What should be considered in initial instructions for a financial order?
The divorce app and financial app are combined.
S28(3) MCA
How is this funded
Explain duties to settle prior to proceedings issued (cost implications)
Have they attended MIAM? Unless exempt
What are the stages for proceeding with an application for form A
First appointment will be within 12-16 weeks after the filing of form A
Form A must be served in respondent within 4 days of filing
Form C follows which outlines the disclosure of evidence guidance and date for first appointment.
How do you pre for first appointment?
35 days before file and serve form E (property financial disclosure) with supporting docs
14 days before the hearing file the following:-
- questionnaire with further docs requests
- chronology of personal history of parties and marriage
- concise statement of issues (disputes on property etc)
- Form G (whether they are eligible for FDR)
- Form H estimating costs so far
Can the use of experts be permitted?
Yes, but the costs generally do not agree. Only if parties agree to joint expert evidence. If not coats of using the expert may be restricted.
What will be decided at the first appointment?
Judge will decide that parties may produce further documents, whether valuations for assets is needed, or need for expert evidence
A final hearing will then be listed, or an interim order awarded, further directions needed or the case to be adjourned for out of court mediation
What is the process of the FDR
May be combined with first appointment to save time and cost
Both parties to attend with legal reps
Settlement is the primary focus
7 days before applicant must make an offer and detail responses to it.
If not settlement, final hearing is listed and judge of FDR involved no further.
How to prepare for final hearing.
14 days prior to hearing applicant must file statement outlining issues and details of orders they wish the court to make
7 days before the hearing the respondent must file a similar statement
Brief and bundle should be done for counsel
How can a respondent make a financial order application?
Via Form A
Or file an answer to applicants divorce application
If parties do not agree that the final hearing should be private how may they appeal
Under Art 6&8 of the ECHR
