Financial Orders 1&2*

Question 1

AIM- With regard to financial orders, what is the law trying to achieve?

Answer 1

provide equal share of benefit and disadvantage,the court has extensive powers takes into account all the circumstances of the case, so it will for e.g take account for someone who has given up career to look after children, takes account of stay at home moms

Question 2

AIM- e.g of court providing an advantage and disadvantage?

Answer 2

So when a couple split up, one person might be compelled to pay the other money every month so that can be a benefit but also disadvantage e.g if family have 1 pot of money to live on then divorce splits from two so money has to split twice as far

Question 3

AIM-How does the law achieve and ad and disad & e.g in exam?

Answer 3

Law provides guidelines but the rules are quite flexible, no two cases are the same, In the exam u might be asked to come up with finaical order that u think approp and court would decide for breakdown, no right answer just have to justify.

Question 4

AIM-cases for aim?

Answer 4

Miller v Miller [2006] - ‘the courts must exercise their powers so as to achieve an outcome which is fair between the parties’ - outcome = fair and betters both parties- lady hale in this says it was the ultimate obj= equal start.

Question 5

AIM-what is the phrase that you sometimes come across in relation to this case and what does it mean?

Answer 5

Clean break- parties has no further obligations towards each other, financial independence for each party.

Question 6

AIM-what about lady hale saying equal start in the miller case?

Answer 6

it is rarely possible especially when you have someone with children.- court always try to see whats fair but back of mind is financial ind, but not possible when small children involved.

Question 7

AIM- When is the power of the court limited?

Answer 7

If couple married court has huge powers but if unmarried powers are limited

Question 8

BRKDWN ORDERS MADE- Under which acts are the orders made and what about it?

Answer 8

Orders available under MCA 1973 and CPA 2004,Orders avail – same under both acts

Question 9

BRKDWN ORDERS MADE-What are the 6 types of breakdown of orders that can be made?

Answer 9

1. Periodical Payments Order – financial provision
2. Property Adjustment Order – transfer or settle
3. Lump Sum Order – financial provision
4. Pension Sharing Order
5. Maintenance Pending Suit - financial provision
6. Sale (of property)

Question 10

BRKDWN ORDERS MADE-what section is periodical payments order?

Answer 10

s.23(1)(a) MCA 1973

Schedule 5, para 2(1)(a)

Question 11

BRKDWN ORDERS MADE-what is the maintenance in regards to periodical payments?

Answer 11

One party has to pay other party money either:

weekly, monthly or annually , can be unlimited or a certain amount of time 2 years or forever –

Question 12

BRKDWN ORDERS MADE-what should the courts consider in regards to periodical payments?

Answer 12

Courts must consider whether a ‘clean break’ is appropriate so are periodical payments suitable-

Question 13

BRKDWN ORDERS MADE-When would you set up a nominal periodical payment?

Answer 13

if youre couple where clean break approp but wife getting back on feet financially (job uncertain) might not need money now but might in future you would set up,this allows her, that if she gets into financial trouble in future she can apply for variation, it is a tactical move. what sometimes happens is a wife will be awarded periodical payments of £1 year, leaves door open for variation of that periodic payments

Question 14

BRKDWN ORDERS MADE-Normally if youre not getting periodical payments what are you getting?

Answer 14

you might get a greater lump some it is all a question of balancing

Question 15

BRKDWN ORDERS MADE-what does s 28(1)(a) relate to?

Answer 15

death or remarriage of payee

Question 16

BRKDWN ORDERS MADE-what does it mean by the ppo and deaht or remarriage of payee?

Answer 16

if u have periodical payments order and u get married/ die it stops

Question 17

BRKDWN ORDERS MADE-what if you have somebody who is a bad payer?

Answer 17

you can have secure periodical payments

Question 18

BRKDWN ORDERS MADE-exam q of bad payer?

Answer 18

e.g wife has money to live on but not working, or husband not good financially asking u to say they can be secured -, and property either money or house has to put aside so if divorced u can use that security

Question 19

BRKDWN ORDERS MADE-what is the 1 thing to be said about secure periodical payments?

Answer 19

bc clean break provision, if court knows gonna be bad payer, might give wife security, house but no periodical payments so captilise off payments. so instead 1000 month for 10yrs, wife would get a lump sum = capitalising payments.

Question 20

BRKDWN ORDERS MADE-so in all what are the several types of periodical payments?

Answer 20

1. normal periodical payments- husband pays £100
2. nominal pp-which allows u to come back in future and increase amount
3. secure them if u want if u think bad payer on house/property-if u have secured payments they live past death of payer, its for the payees life not payers life

Question 21

BRKDWN ORDERS MADE-What could you do as tactial move if wife never worked?

Answer 21

wife never worked husband wealthy, her chances getting work low aswell kids, because on remarriage payments cease, tactical move could be is to captilise payments, and if wife remarries has no effect on order, can ask ct if could captilise= more money upfront and if worked in month but not all people have money to do this.

Question 22

BRKDWN ORDERS MADE- what act are property adjustment orders under?

Answer 22

s.24(1) MCA 1973

Schedule 5, para 7(1) CPA 2004

Question 23

BRKDWN ORDERS MADE-what are the 2 orders in pao?

Answer 23

Transfer of Property

Settlement of Property

Question 24

BRKDWN ORDERS MADE-what is meant by transfer of property?

Answer 24

essentially means transfer matrimonial home from person to the other ,not always house can be furnishing, can be car etc but normally house = achieve cleaner - gets house but not lump sum of money (wife)

Question 25

BRKDWN ORDERS MADE-when can transfer of property arise?

Answer 25

Arise where possibly couple had house and savings, beneficial ownership isn’t joint but wife stays in house but no lump sum.

Question 26

BRKDWN ORDERS MADE-what is meant by settlement of property?

Answer 26

most common mesher order where absent party retains an interest in the house,

Question 27

BRKDWN ORDERS MADE-eg of mesher order?

Answer 27

a and b sep, wife stays in home with kids as primary carer, b cannot claim share until youngest 18, both own house 50% but husband does not lose all interest in prop just has to wait. - mesher needs trigger event, might be 18 might be not, normally if spouse in occ remarries-trigger house needs to be sold or absent spouse has bought out.

Question 28

BRKDWN ORDERS MADE-idea behind mesher order?

Answer 28

give children home until 18 and then absent spouse can have their money.

Question 29

BRKDWN ORDERS MADE-When will a mesher order might be appropriate?

Answer 29

where the money used to purchased house has been predominately given to 1 person e.g Mansfield v Mansfield [2001] - personal injury compensation used to buy family home

Question 30

BRKDWN ORDERS MADE-what happened in regards to mansfield?

Answer 30

had to wait until children 18

Question 31

BRKDWN ORDERS MADE-what is important about mesher orders?

Answer 31

quite popular but u need to be careful of what the triggering event is, so what triggers the sale.

Question 32

BRKDWN ORDERS MADE-What are the things to watch for with mesher orders

Answer 32

• if have disabled child
• or children post school ed, degree- need home after
  law open accepting children

Question 33

BRKDWN ORDERS MADE- what are lump sum orders to which act?

Answer 33

s.23(1)(c) MCA 1973

Schedule 5, para 2(1)(c)

Question 34

BRKDWN ORDERS MADE-How do lump sum orders work?

Answer 34

1 spouse pays other spouse lump sum,can be instalments or one off payment, normally used to achieve a clean break between parties, because it is a final settlement goes back to miller v miller, independent living,

Question 35

BRKDWN ORDERS MADE-what is the duxbury formula?

Answer 35

works out how much somebody would need to live on= clean break instead of giving someone periodic payments for life, works out how much money she will need to achieve 1000 a month for the rest of her life.- calc how much lump sum needed.

Question 36

BRKDWN ORDERS MADE-e.g of duxbury formula?

Answer 36

say wife need 1000 per month for life te dux will look at interest rates, life expectancy, and it will work out how much of a capital sum u need to achieve 1000 pounds a month in payment,Only a guide as not certain

Question 37

BRKDWN ORDERS MADE-what does duxbury penalise?

Answer 37

if u do Duxbury when older could end up with less as less years to gain

Question 38

BRKDWN ORDERS MADE-what act is pension sharing forumlas under?

Answer 38

s.24B MCA 1973

Schedule 5, para 16

Question 39

BRKDWN ORDERS MADE-what is judicial sep?

Answer 39

the couple remains legally married but their normal marital obligations cease and they no longer have to go on living together.

Question 40

BRKDWN ORDERS MADE-when can you not get pension separation orders & what is it?

Answer 40

Not available on judicial separation-this is where 1 spouse has pension and other 1 doesn’t

Question 41

BRKDWN ORDERS MADE-what are the three things you could do?

Answer 41

‘earmarking’, ‘pension sharing order’ and ‘offsetting’

Question 42

BRKDWN ORDERS MADE-what is earmarking?

Answer 42

evry1 has pension pot and ct says this amount for husband and other for wife

Question 43

BRKDWN ORDERS MADE-what happens when this type comes about?

Answer 43

-when type of pension comes about husband get 75 and wife 25 so if pension 1000 month husband 750 and wife 250 ear marking wife can only claim when
husband claims,

-post divorce, husband can stop paying into this pension pot and set up another pension pot so leaves wife vunerable as husband can stop paying into the pension = less money , so ear marking

wouldnt use ear marking in exam= not preffered option

Question 44

BRKDWN ORDERS MADE-what happens in pension sharing?

Answer 44

Pension sharing is preffered op, have pot, ct decides what wife entitled to 25- there is real breaking (splitting of pen), wife can do what she wants she can transger out, set up her own, and can claim when reach retire age. Important when spouses at diff ages, husband share stays at it is but there is no connec,

Question 45

BRKDWN ORDERS MADE-what do ct says when getting married?

Answer 45

Ct says when u get married law says u combine all ur assets, now the ct has to look at all circumstances 1 thing looks at is contribution to martial pot and 1 of thigns that influences outcome is where money comes from pre marriage - but just say in exam pension order best one

Question 46

BRKDWN ORDERS MADE-what is offseting?

Answer 46

Offsetting-her 25% pension pot Is worth 100,000 and then that 100,000 will create income for her ct can do is ask husband to pay wife 100,000 to offset pension, so she doesn’t get any pension so pension 100%mhusband but she gets 100,000 so she is offseting- instead of geting pension get £100.000 in cash she gets.

Question 47

BRKDWN ORDERS MADE-what act is maintenance pending suit under?

Answer 47

s.22 MCA 1973

Schedule 5, para 38

Question 48

BRKDWN ORDERS MADE-what is maintenence pending?

Answer 48

U get periodical payment pending ur divorce outcome being heard-interim order of certain amount each momth up to the trail date,

Question 49

BRKDWN ORDERS MADE-why don’t the court like making these?

Answer 49

No in depth analysis. so in exam try negotiate,what u can do if husband isn’t paying, people aren’t allowed to transfer mney out of banka ccoutns so u can get ct order that someone is obadying paying, NOT SEEN AS BEING BIBLE BY CTS even if approp

Question 50

BRKDWN ORDERS MADE-what act is sale under?

Answer 50

s.24A MCA 1973

Schedule 5, para 10

Question 51

BRKDWN ORDERS MADE-when is sale usually?

Answer 51

when there are limited assests so house is the only asset

Question 52

BRKDWN ORDERS MADE-case for sale?

Answer 52

W v W [2009]-hosue was the only asset

Question 53

BRKDWN ORDERS MADE-e.g of limited?

Answer 53

lets say u had a house worth 2 mill and theres a mortgage of 500,000 so u have 1.5 mill worth of equ and no other assets, courts in that case would probs say, sell home, split equity to achieve clean break,each party can buy home and allows clean break and allow to move on-it s in spirit of miller v miller, only usally happens in high value houses

Question 54

BRKDWN ORDERS MADE-e.g of another order?

Answer 54

u can also have order where party is reluctant to pay a lump sum e.g husband has to pay wife 500,000 doesn’t want to he is reluctant court can order sale and proceeds to pay 500,000 so can be used as leverage for someone who is reluctant to pay.

Question 55

BRKDWN ORDERS MADE-exam need to know?

Answer 55

NEED TO KNOW THEM AND NEED TO KNOW WHERE TO LOOK IN STAT AND NEED TO KNOW HOW THEY CAN BE USED TACTICALLY BC IT IS THAT TACTICALLY USING OF FINANCIAL ORDERS THAT IS GOING TO GET U THEM MARKS U NEED TO UNDERSTAND U HAVE STA BOOK INFRONT U ARE TRYING TOA CHIEBE FAIRNES BTW PARTIES AND HAVE TOACHIEVE IN BEST WAY SO EXPECT U TO REALLY THINK ABOUT APRTIS AND FINANCIAL SIT AND WHATS FAIR BEARING IN MIND…

Question 56

BASIS ON WHICH ORDERS MADE-

Answer 56

Takes account of the 9 factors listed in s.25 MCA.

Schedule 5, para 20 and 21 CPA 2004 has similar provisions

Question 57

1. s.25(1)/Schedule 5, para 20?

Answer 57

first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.’

Stability for the children is key

Question 58

e.g for 1. s.25(1)/Schedule 5, para 20?

Answer 58

Miller;McFarlane [2006]
- ‘This is a clear recognition of the reality that, although the couple may seek to go their separate ways, they are still jointly responsible for the welfare of their children. The invariable practice in English law is to try to maintain a stable home for the children after their parents’ divorce.’

Question 59

what may this mean and case?

Answer 59

It may mean there is little money left for the adults

- B v B (Financial Provision) [2002]

Question 60

Analysis of the word ‘first’?-

Answer 60

not the same as paramount – Suter v Suter and Jones [1987]

• first to consider but its not overrding as such
• and the deputy judge had erred in treating the children’s welfare as the paramount consideration in determining the amount of the periodical payments to be made to the wife;…’

Only applies to ‘children of the family’ – s 52

Under 18

Question 61

2- hear lec?

Answer 61

-