English and Welsh Financial Provisions Flashcards
Where can the financial orders for Homosexual and Heterosexual relationships be found?
Matrimonial Causes Act 1973, Part 2, Section 21 to 40A
Civil Partnership Act 2004, Schedule 5
Where can the financial orders for Homosexual and Heterosexual relationships be found?
Matrimonial Causes Act 1973, Part 2, Section 21 to 40A
Civil Partnership Act 2004, Schedule 5
Under Section 23 of the Matrimonial Causes Act 1973 what types of order can be made?
Periodical Payments
Lump Sums
Transfer, settlement or sale of property
Under Section 23 of the Matrimonial Causes Act 1973 what types of order can be made?
Periodical Payments
Lump Sums
Transfer, settlement or sale of property
Under Section 23 of the Matrimonial Causes Act 1973 what types of order can be made?
Periodical Payments
Lump Sums
Transfer, settlement or sale of property
What level of discretion do the courts have?
Wide ranging
What does Section 25 of the Matrimonial Causes Act 1973 give judges?
Guidance on the application of their power.
Does the order of Section 25 of the Matrimonial Causes Act 1973, indicate priority?
No
In which case did Lord Hoffmann indicate that there was no priority to Section 25 factors and that it was dependent on the facts of each case?
Piglowska v. Piglowski 1999
What is the starting point in determining the assets of a couple?
All property is considered
If assets are in a company will they be considered by the court?
No
In which case were the resources of the husband in companies awarded to the wife, as a result of the companies being deemed to be in trust?
Petrodel Resources Let & Ors v. Prest & Ors [2013]
In which case was the welfare of the child in requiring a home significant in awarding the mother the full equity of the marital home?
B v. B (Financial Provisions: Welfare of Child and Conduct) [2002]
In which current case has it been indicated that even 18 years after a divorce a claim for financial provision may be allowed?
Wyatt v. Wyatt 2015
In which case even though the assets were inherited if they were the only assets available to meet the financial need then they could be used?
White v. White 2000
In which case even though the assets were inherited if they were the only assets available to meet the financial need then they could be used?
White v. White 2000
In which case was the wife’s inheritance investment in a business grounds for a 50% share in the sale of the business? Or rent at a reduced rate?
B v. B (Ancillary Relief) [2008]
In which case was the wife’s inheritance not included in matrimonial assets due to there being significant other assets?
S v. S 2007
In which case was the wife’s inheritance not included in matrimonial assets due to there being significant other assets?
S v. S 2007
In which big money case were the needs of the weaker spouse met on the basis of fairness?
McCartney v. Mills-McCartney 2008
What is important to consider in big money cases on assessing the needs of a weaker spouse?
The standard of living prior to the marriage and and length of the marriage.
In which big money cases was substantial wealth prior to the marriage grounds for it having less weight in awarding the weaker spouse financial provisions?
McCartney v. Mills-McCartney 2008
In which big money cases was substantial wealth prior to the marriage grounds for it having less weight in awarding the weaker spouse financial provisions?
McCartney v. Mills-McCartney 2008
In which case where the marriage lasted 9 months was the award of a lump sum and annual payments said to be generous but not unreasonable?
C v. C (Financial Provision: Short Marriage) 1997
In which case was the substantial increase of the husband’s wealth during the marriage of almost 3 years grounds for a substantial award to his wife?
Miller v. Miller 2006
In which case was it determined that personal injury awards could be considered but the severity of the injuries meant it would be unfair?
C v. C (Financial Provision: Personal Damages) 1995
In which case was it determined that personal injury awards could be considered but the severity of the injuries meant it would be unfair?
C v. C (Financial Provision: Personal Damages) 1995
Do the contributions during the marriage taken into consideration have to be solely financial?
No
Should there be discrimination between the money earner and the home maker of a household?
No
In which case was the husband’s entrepreneurial talent grounds for a greater award, arising from a ‘special contribution’?
Sorrell v. Sorrell 2005
In which case was the husband’s entrepreneurial talent grounds for a greater award, arising from a ‘special contribution’?
Sorrell v. Sorrell 2005
In which case was the 50% share split departed from after a 30 year marriage?
Charman v. Charman 2007
In which case was the conduct of a spouse looked at due to it being gross and obvious?
Wachtel v. Wachtel 1973
Have courts moved away from look at fault in divorce?
Yes
In which case was periodic payments stopped due to the wife attempting to have her ex husband murdered?
Evans v. Evans 1989
In which case was the Judge not sympathetic towards the husband who was serving time in prison for sexual assaults on his wife’s grandchildren. So was awarded only £100,000 - a small sum compared to the wife’s assets?
K v. L 2010
When looking at the needs of a spouse what will the court consider?
Provision for: Income, accommodation, old age, travel, holidays and other luxuries.
When looking at the needs of a spouse what will the court consider?
Provision for: Income, accommodation, old age, travel, holidays and other luxuries.
If the payee of a divorce is unlikely to have independent income within 3-5 years what sort of award is likely to be made? (Typically only applies in big money cases)
One that will allow them to live at their marital standard of living.
If there are not enough assets to allow the couple to live at their marital standard of living, what standard shall be considered?
Reasonable standard of living for both parties.
In which big money case was the wife said to have received the maximum contribution possible at the time of £15 million.
Conran v. Conran 1997
In which big money case was the wife said to have received the maximum contribution possible at the time of £15 million.
Conran v. Conran 1997
Which case did not signal an equal division of assets in big money cases but signalled that the ceiling of £15 million was no longer so restrictive?
White v. White 2000
Which case did not signal an equal division of assets in big money cases but signalled that the ceiling of £15 million was no longer so restrictive?
White v. White 2000
What circumstances may allow for a departure from capping the maximum payout to £15 million?
Special Contribution
Non-Matrimonial Property
If premarital assets are required in order to meet the needs of the parties, can they be used?
Yes
In which case did the court hold that inherited wealth should be treated differently due to its nature?
Robson v. Robson 2010
In which case was it held that only the increase of the husband’s wealth during the marriage was to be shared?
Jones v. Jones 2011
In the Miller v. Miller, McFarlane v. McFarlane case which 3 elements for a fair financial split were identified?
The meeting of needs
The giving of compensation
Sharing
In the Miller v. Miller, McFarlane v. McFarlane case which 3 elements for a fair financial split were identified?
The meeting of needs
The giving of compensation
Sharing
The sharing principle identified in the Miller v. Miller, McFarlane v. McFarlane is based upon which two principles?
Equality - not valuing the breadwinner’s contribution more.
Partnership - it is natural to share the property.
In which case were the periodic payments set to not only meet the wife’s needs but her sacrifice of a highly successful career?
McFarlane v. McFarlane
Which recent case is critical of the McFarlane approach to payments?
SA v. PA 2014
In which case was it stated that the division of more modest estates should be done in order to achieve a fair outcome?
B v. B (Ancillary Relief) 2008
In which case was the wife awarded a greater proportion of the profit from the sale of the home in order to house the children?
M v. B (Ancillary Proceedings: Lump Sum) 1998
In which case was the wife awarded a greater proportion of the profit from the sale of the home in order to house the children?
M v. B (Ancillary Proceedings: Lump Sum) 1998
What 4 factors support the rule that equal division is not absolute?
Lack of clarity over what is matrimonial property
Length of the marriage
Unusual property - gifts or inheritance
Business efforts of one party alone
What 4 factors support the rule that equal division is not absolute?
Lack of clarity over what is matrimonial property
Length of the marriage
Unusual property - gifts or inheritance
Business efforts of one party alone
Which provision allows for payments until the parties are adjusted without hardship?
Matrimonial Causes Act 1973 S.25A(2)
Which provisions directs the court to terminate payments following a time that is considered to be just and reasonable?
Matrimonial Causes Act 1973 S.25A(1)
What are orders that do not impose ongoing financial provisions referred to?
Clean Break
When a term imposing the termination of payments after a period of time is completed, what is this called?
Deferred clean break
A deferred clean break is not satisfied unless?
It is accompanied by a direction pursuant to the Matrimonial Causes Act 1973 S.28(1A).
If a deferred clean break is not accompanied by a direction pursuant to the Matrimonial Causes Act 1973 S.28(1A) then the payee can?
Apply for the term of payments to be extended, provided the application is made prior the expiration.
Does the clean break principle include life long provision through capitalisation?
Yes
In which case did the court rule that it was unfair to expect a husband to support his ex-wife for her life time?
Wright v. Wright 2015
In which case did the court rule that it was unfair to expect a husband to support his ex-wife for her life time?
Wright v. Wright 2015
What formula can be applied in order to calculate payments for support of the weaker party?
Duxbury
In which case was fairness not a factor due to the wife’s wealth deriving from her family?
Radmacher v. Granatino 2010
Which case gave a prenuptial agreement effect on appeal?
Radmacher v. Granatino 2010
Which case gave a prenuptial agreement effect on appeal?
Radmacher v. Granatino 2010
Are both parties required to seek independent legal advice when entering into a prenuptial agreement?
No, but it is highly advised in order to ensure effect is given to the agreement.
What factors will lead to a prenuptial agreement not being upheld?
Fraud
Duress
Undue Pressure - not agreeing to marry unless it is signed
In which case did the wife enter freely into a prenuptial agreement, not seek independent legal advice but the agreement was upheld as you cannot simply disagree due to not liking the terms?
SA v. PA 2014
In which case did the wife enter freely into a prenuptial agreement, not seek independent legal advice but the agreement was upheld as you cannot simply disagree due to not liking the terms?
SA v. PA 2014
Which case approved the approach adopted in Radmacher v. Granatino 2010?
SA v. PA 2014
Which case approved the approach adopted in Radmacher v. Granatino 2010?
SA v. PA 2014
What are Qualifying Nuptial Agreements?
Enforceable contracts which would enable the couples to make binding arrangements for the financial consequences of divorce or dissolution.
