Chapter 6- Financial orders

Question 1

Which section of the FPR 2010 governs financial orders?

Answer 1

Part 9

Question 2

Which section of the MCA sets guidelines for the court to impose financial orders

Answer 2

S25 MCA 1973

Question 3

What are the factors considered for financial orders (9)

Answer 3

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

Question 4

What type of finances are considered under financial resources?

Answer 4

Pension, insurance, inheritance, income, child care giving, future earnings, premium bonds, property,

Question 5

What type of facts are considered for present and future financial needs?

Answer 5

Housing, bills, travel, food, upkeep of household, new families / income of second partner, education and health

Question 6

What type of facts are considered for the standard of living enjoyed by the family before breakdown of the marriage?

Answer 6

Court will consider it may not be maintained, any fall in living standard is shared equally.

Question 7

What type of facts are considered for age and duration of the marriage?

Answer 7

If you g and childless probably will get clean break, and won’t be awarded high settlements Miller v Miller

If old, vice versa

Question 8

What type of facts are considered a party who has a physical or mental disability?

Answer 8

They may have lower capability of earning of greater needs

Question 9

What type of facts are considered for contributions made by parties welfare of family during marriage and in future?

Answer 9

White v white - stay home parent contributions are equally as important

Question 10

What type of facts are considered for conduct between the parties, if that conduct is inequitable to ignore?

Answer 10

Evans v Evans - case where lump sum was reduced as wife encouraged husband to commit suicide

Question 11

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?

Answer 11

Prenups are not binding despite ruling of Radmacher v Granatino

They will be following pending bill in government

Question 12

What is the clean break principle

Answer 12

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

Question 13

What did white v white establish

Answer 13

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

Question 14

Which case is contradictory to white v white and why

Answer 14

Cowan v Cowan- husbands initiative and entrepreneurial intelligence make his financial contribution greater

Question 15

What did miller v Miller; Mcfarlane v Mcfarlane establish

Answer 15

Periodical payments can be used by way of compensation to the party who has had a reduced income. I.e the home maker

Question 16

What 6 types of orders are there

Answer 16

Periodical payments s23 MCA
Secured payments 
Lump sum payments s23 MCA
Property adjustment orders s24 MCA
Trust of Land - Mersher / Martin order 
Pensions order

Question 17

What are the benefits of a mesher order?

Answer 17

Light at the end of the tunnel for excluded party
Possibility of deferred equal division
Preserves home for children

Question 18

When is a Martin order appropriate

Answer 18

If excluded spouse has a secure home else where

If older party has little to no earning capacity

Question 19

What types of pension orders are there?

Answer 19

Pension sharing order s24B MCA

Pensions attachment order s25B-25C MCA

Off setting

Question 20

What are family based arrangements?

Answer 20

Parents use the support of child maintenance options service to put a arrangement in place instead of resorting to statutory services available.

Question 21

Who provides a service for child maintenance arrangements and enforcement of those arrangements?

Answer 21

CMS

Question 22

What is the formula for CM

Answer 22

Gross weekly income - % per child (either 12/9%, 16/12%, 19/15%)

Question 23

What is the appeal process for child maintenance payments

Answer 23

Referred to another CM officer
Tribunal
Upper tribunal
Court of Appeal

Question 24

After fees are deducted, what percentage of the CMP is paid to the payee

Answer 24

96%

Question 25

Who can make an application for financial order?

Answer 25

Parent or civil partner
Child over 18 that’s is applicable for it
Person child is living with under CA order.

Question 26

Which part of the children’s act covers financial orders

Answer 26

s15 and Sch1 CA

Question 27

What are the two procedures for FPR financial orders?

Answer 27

Standard procedure

Fast track procedure

Question 28

What does s28(3) MCA state

Answer 28

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

Question 29

What should be considered in initial instructions for a financial order?

Answer 29

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

Question 30

What are the stages for proceeding with an application for form A

Answer 30

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.

Question 31

How do you pre for first appointment?

Answer 31

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

Question 32

Can the use of experts be permitted?

Answer 32

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.

Question 33

What will be decided at the first appointment?

Answer 33

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

Question 34

What is the process of the FDR

Answer 34

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.

Question 35

How to prepare for final hearing.

Answer 35

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

Question 36

How can a respondent make a financial order application?

Answer 36

Via Form A

Or file an answer to applicants divorce application

Question 37

If parties do not agree that the final hearing should be private how may they appeal

Answer 37

Under Art 6&8 of the ECHR