Financial Order 3 & 4 Flashcards
what should you deffo know in relation to 3?
Big money cases
what is the priority in case where there isn’t much money
priority of children and providing homes for children as primary carer= PRIMARY CONCERN
what have the big money cases allowed?
- allowed the courts to develop new guidelines and principles compared to middle income cases with little money.
- disect s25
what has developed from big money cases?
developed 4 principles: Needs Sharing (Equality) Compensation Autonomy
what are all the big money cases?
- White v White [2000]
- Miller v Miller [2006]
- McFarlane v McFarlane [2006]
- Miller;McFarlane [2006]
what happened in white v white?
-married 30 + yrs- divorced= 2 farms, 1 farm togev and 1 husband- husbands father helped purchase farm by dividing interest free loan
Assets – £4.5 million farm – joint business- of 4.5 wife owned 1.5 on her own
Mrs W spent less time in the business due to childcare responsibilities - joint bus but she spent less time
At first instance - £1 million – ‘reasonable requirements’
thats what wife got
-Coa increased to 1.5 mill and then they tried to appeal to hol but was dismissed
principle of white?
overrding obj in this case = fairness
what is meant by fairness?
isn’t a presumption of equal division, fairness doesn’t mean each should get 50% of assets, fairness doesn’t equal equality and also that’s the object of s.25 but any departure from equality u need TO JUSTIFY WHY
what is the clear point, courts were tryna make in this case?
did not want to achieve equal divisions, court will check decision against yardstick principle- yardstick of equality of division’
what case is yardstick confirmed in?
Lambert v Lambert [2002]
-Yardstick of equality = ‘cross-check’
-so it is an assessment, has fairness been achieved , now in cross check, all youre doing is saying when ur departying equality and then saying why that’s all ur doing ur justifying your departure from equality
what happened in elliot v elliot?
Elliott v Elliott [2000] - confirmed that cross check applies to all cases (not just big money ones).
how achieve in white?
had a farm 1 of the farms were brought jointly btw couple and other farm inhertited so court had o discusee what to do with inherited property and it questioned should an only spouse be able to keep this this is justify a departure from equality and in doing so the court should CONSIDER nature value etc read as written
So in this case in white v white the departure from equality was justified on fact that some of the assets has been inherited
what is the real change in white v white?
No distinction to be drawn between contributions of childcare/home making and economic contributions.= equal contrib
what happened in Lord Nicholls?
So if a wife states children he goes work an earns money hes not aloud to keep money cos earnt it because their contribution is ee as equal
reasons for departing in this case?
Farms had been purchased with money provided by the husband’s family
W’s reasonable requirements should not be a ceiling
interesting about white?
there were 4.6 mill worth of asses made up of all this, wifes assts seen as 1.5 mill , wife $1mill but ur owed 1.5 mill ull get les under a finaical order than u would under partnership law
what was the inherited farm?
reason for division in equality-and said that that belongs to the husband- joined assets she is entitled to though. white v white, law moved on but this about ‘no distinc’ breadwinner- principle for white- yardstick in other cases
what happened in miller v miler?
- Married for 3 years, no children
- husband had affair, he was wealthy
- he got pay £13 mill before got married and during m12-18 mill and
- mrs m awarded 5 mill of that assets they had
-She got 34% of marital request , so court took mid point and 12- 18 then awarded her 34%, they ignored the money that he brought to the marriage
why did they ignore money he made?
- The reason for the breakdown of the marriage was immaterial
- Mrs M entitled to a share of the assets created during the marriage (marital aquest)- home maker , breadwinner, equal, white case
- Promises from Mr M that Mrs M would always live a comfortable lifestyle were ignored by crts,fact that length of marriage also key it was only 3 yrs
- high award is justified because dc the marriage there had been a huge creation of assets between 12 and 18 mill pounds she nevr worked during the marriage but under white she doesn’t have to, but divdision of qual justified, :
per Lord Nicholls – On account of the work carried out by Mr Miller prior to the marriage
per Baroness Hale – because the key assets had been generated solely by the husband during a short marriage.
-Youll find in high wealth cases wife will normally get 35% or so
what happened in McFarlane v McFarlane [2006]?
- Married for 16 years and they had had 3 children
- Both had successful careers but Mrs M gave up her job to look after the children
- The couple had £3 million worth of assets and the husband earned £750,000 per year
-He was acountat she soliciort she gave up her job to look after children home maker bread children, unemploured during
Court saif the starting point due to length of marriage starting oint= equal dividosn this would mean each part would get 1.5
Principles flowing from the case?
Equal division of capital due to the length of the marriage
This would mean:
- each party would be due £1.5 million
- Mr M would continue to earn £750,000
- Mrs M is without an income
This was viewed as an unfair result and Mr M ordered to pay Mrs M an annual payment on top.- so she got very large periodical payments
what about miller and mcfarleane ?
The appeals from Miller and McFarlane were heard together in the House of Lords.
The following principles were established in appeals?
- The principles in White applies to all marriages
- To achieve fairness, the rationales of
(a) needs = cross yard check,
(b) compensation = should wife be comp for lack of pension etc cos she hasnt worked during marriage etc
(c) sharing should be applied to each case =and each spouse is entited to share of the partnership and that should equal in equal shares unless there is a reason not to
3. Not all property is to be treated equally (although all must be considered).- distinc btw martital and non martial whats fair to have and not
4. Clean break/financial independence for each party-so court trying to achieve that cutting ties between the two partie,
what is the first principle?
First Principle: Sharing
-remember miller miller very short marriage only 3 years and they dsiccused miller v miller to justify equl or unequal sharing whether short marriage or not
i. Distinguish between short and long marriages when considering division of assets.
ii. Is there a good reason to depart from equality?
how long is a short mariage and long marriage?
A short marriage is generally something up to 10 yrs so if u ahev 10yrs = medium/logn term and over 10 yrs equal sharing is more likely to happen
what will courts focus on for short marriage?
So what happens is eg have marriage that 3 yrs court will focus on which is known as a martial aquest- assets generated during marriage,
what will court focus on with longer mariages?
As it gets longer 40yrs court will take into account all assetss even those derive out fo marriage shorter marriage= marital aquest but as goes on so pre martial assets
what do you need to think about when thinking about sharing?
When u think about sharing u need to think about equality and u need to think is there a good reason to depart from equality/ depart from equal sharing?
what is the overral objective?
OVERAL OBJECTIVE OF FINAICAL ORDER= TOA AACHIEVE FAIRNESS BTW PARTIES- so what ur asking is if youd epart from equal quality does that achieve fairness?
what do you look at btw short marriage and long marriage?
So if u got this principle- short marriage just loking at whatc reated during marriage longer =more blurred lines between what is amrital and no n marital prop
examples of sharing?
McCartney v Mills McCartney [2008] – division from equal bc money acquired before marriage
K v L [2011] – inherited money-lots of money 59 mill but lvied very modest life reason for departing from eqali
Miller v Miller [2006] – assets derived from husband’s work
White v White [2000] – contribution of husband’s family-inherited farm and also one of the farms was bought with money given by the husbands father= interest free loan
Charman v Charman [2007] – H was outstanding businessman-husband was an outstanding business man that was sen as a reason to depart from equality he made 130 mill pounds during the marriage and wife got 36% of it
Dharamshi v Dharamshi [2001] – business created from H’s parents-again was a business created from the assets if parents from the husband that was seen as a reason to depart from equality
B v B [2008] – inherited money -couple that money had was mainl the wifes inhertienace, inheritance property to depart from equals
Sorrell v Sorrell [2006] – pre-marriage assets/husband generated assets-case of one party made an outstanding contribution and in
P v P (Inherited Property) [2004] – Inherited farmland- there was an inherited farm reason to depart from equality
Generally courts don’t like selling income generating assetss
what about examples of this?
also the nature of the assetss and that ties in with inherinted farmland so if ur asset is ur business court unlikel to make u sell it because that is ur income
iii. What is meant by the ‘sharing principle’?
Charman v Charman [2007]
- it is unusual to get 50% equal sharing order but the equal sharing principle comes from this idea that marriage is a partnership of equals and if u are equal in your marriage then you should be entitled to an equal share of the assests
