Financial prov: divorce/dissolution

Question 1

Acts?

Answer 1

Family law (S) Act 1985

As amended

Civil Partnership Act 2004

Question 2

Key points

Answer 2

Aim to facilitate clean break

Intended to be flexible, scope for discretion

Financial provision is state control of finances, not ailment

Question 3

S8 orders

Answer 3

Order for payment of capital sum - principal principle

Property transfer order

Periodical allowance

Pensions sharing order

Incidental orders eg sale of property then split

Question 4

Preconditions for s8 orders under s8(2):

Answer 4

Justified by s9 principles

Reasonable having regard to resources of parties

Question 5

S9 principles

Answer 5

A. Fair sharing of matrimonial property

B. Fair account of economic adv and disadvantages suffered

C. Fair sharing of economic adjustment to loss of financial support

D. Relief of financial hardship

Question 6

Courts must first ensure that

Answer 6

Capital sum or property transfer orders would be insufficient or inappropriate before making any other orders under principles c-e

These ones allow periodical allowances and his are less favoured

Not clean break

Question 7

9(1)(a) fair sharing of matrimonial property

Answer 7

Norm of 50/50

Unless gift from third party/succession

10(4) MP is all property belonging to parties or either of them at relevant date which was acquired before marriage for use as family home/plenishings etc

During marriage but before relevant date

Question 8

MacLellan
V
MacLellan

Answer 8

Property not acquired during marriage does not constitute MP

Croft bought by husband prior to marriage, held not to be MP as had not been bought for use as matrimonial home but for employment

If not been bought with intention to be used for marriage, not MP

Question 9

3 steps under section

9(1)(a)

Answer 9

Indentify matrimonial property

Value matrimonial property at the relevant date

Divide matrimonial property - with regard to special circumstances

Question 10

Latter
V
Latter

Answer 10

Gifts and succession from third parties not MP

Business assets can count

House purchased with money from family, given directly to solicitors to buy them registered in her name alone

Held: not MP, wasn’t money that was gift but house. If it had been money that they then used to buy house together, would have converted to MP

Question 11

Valuation of MP is Carrie sour at relevant date

S10(3) relevant date is

Answer 11

Either

Date at which parties cease to cohabit

Or

Date of service of summons in action for divorce

Whichever earliest

Question 12

Banks
V
Banks

Answer 12

Disagreement as to when ceased to cohabit as M&W, he often worked away

Held: relevant date was last time he visited home, was also same time he changed bank account, sig.

Question 13

S10(3)(A)

Relevant date for property transfer order is

Answer 13

Either a date agreed by parties

Or

Date on which order is made

Question 14

Wallis
V
Wallis

Answer 14

Illustarted issues with relevant date

One party suffered significantly financial loss as value was judged at date of separation rather than date of transfer

One spouse made profit as when actually transferred had increased in value

Question 15

Petrie v Petrie

Skarpas v Skarpas

Answer 15

Husband injured shortly before marriage

Awarded damages after separated, not MP

Accident occurred during marriage, damages awarded after separation, held to be MP

Question 16

S10(5)

Pensions and life policies

Answer 16

Rights to interests in pensions and life policies can count as MP but only to the extent deferrable to the period of marriage of CP

Amounts acquired before or after are not MP

Question 17

S10(6)

Special circumstances

Answer 17

Norm of equal share at relevant date but special circumstances where deviation is permitted

Eg
Agreement of parties

Source of funds used to acquire MP where funds not derived from income or effort of either parties during marriage

Any destruction, alienation of property by either party

Question 18

Kerrigan
V
Kerrigan

Answer 18

Special circumstances s10(6)

H’s mum gave them money for the house. He also paid whole mortgage.

Awarded full value of house even though in joint names

Unusual outcome

Question 19

S9(1)(b) economic adv/disadv

Answer 19

Considered in practise with s9(1)(a) to award payment of capital sum or PTO

Central purpose is to compensate spouse who has either economically advantaged the other spouse

Or

Been economically disadvantaged

Question 20

Economic advantages

Contributions

Answer 20

adv gained whether before or during marriage, includes Gains in capital, income or earning potential

Can be made before or during marriage
Includes indirect and non-financial contributions eg looking after home

Question 21

S11: balancing exercise

Answer 21

Have any imbalances been offset?

Has resulting imbalance been (or will be) corrected by a staging of value of MP or otherwise?

If sharing of MP not enough, court may choose to make order under 9(1)(b)

Question 22

Cunniff
V
Cunniff

Answer 22

S9(1)(b)

W disadvantaged as had given up work to look after 2 daughters

He continued to work and gained more qualifications. Could only do so because she stayed at home, he was economically adv.

Held: s9(1)(b) applied to justify transfer to W of whole family home

Question 23

Harris
V
Harris

Answer 23

S9(1)(b)

Wife paid off chunk or mortgage with inheritance. Also stayed home, minimised career

Held: principle applied and awarded more than half net value of property

Question 24

Watt v Watt

Answer 24

MP

Authority for conversion of business assets to MP.

MP had value due to fishing assets, they were used towards MP, they therefore were converted into MP.

Question 25

R
V
R

Answer 25

Fair sharing of MP

Wife awarded 1/3 as opposed to half, of net value of MP because to very large extent it was derived from inherited or gifted assets which if they had not been sold would have been out with the scope of MP.