Financial Provision in Divorce and Nullity Flashcards
Richardson v Richardson (No 2)
Should wife be forced to realise capital in former matrimonial home in order to support two daughters who were unlikely to be fully independent for a further 5 years? Held - although the children were no longer minors, they were still dependent on their mother and therefore the mother’s ability to work was restricted. Sale of the family home was to be postponed until the girls finished their education, and the wife’s periodical payments were extended by another five years.
Chiva v Chiva
Marriage lasted 4.5 years, had a 3 year old child. Both parties were professionals, wife had greater earning capacity than husband. Total pool of assets was divided, wife got less than husband, husband was to pay child support and half of nursery fees, and £700pcm spousal maintenance for 24 months. Wife appealed decision, held - not proven that award was too low to meet wife’s needs. Clean break after 24 months was correct as wife had earning power to make up loss of spousal maintenance once child was more independent.
SS v NS
Parties cohabited for 5 years, married for 6 years. Had 3 children, all attending independent schools. Wife was pilates instructor, husband was investment banker, although he moved to a lower paid role after cancer. Assets £3m including husband’s shares, wife claimed £60,000pa for 27 ears and 30% of husband’s net bonus (after deduction of school fees) . Held - choices made during the marriage generated wife’s needs. Duration of marriage and presence of children = pivotal, awards usually based on needs unless, exceptionally, compensatory factors present, when needs not connected to marriage any award should only be based on alleviating significant hardship. Clean break = just and reasonable.
Jenkins v Livesey
Wife and husband made agreement that she had 50% share in matrimonial home in return for not claiming periodical payments, remarried the same month that the consent order was made. Court could only set aside order if: a serious mistake was made by one of the parties, as a result of fraud/misrepresentation, non-disclosure of material facts, resulting in circumstances where the court had made a substantially different order than it would otherwise have done.
Barder v Barder
Parties divorced and home transferred to wife, she killed children and herself, husband made application to set aside consent order and recover the family home. New event within short time period invalidated the basis of the order, and the application was reasonably prompt, therefore it was granted. No prejudice to third parties obtaining interest in good faith.
Sharland v Sharland
Parties were married for 17 years and had three children, one with autism. Husband had business, value of which was disputed. Parties reached an agreement, but before it was sealed there were reports that his company was to be sold, increasing its value. Wife claimed order should not be sealed. Evidence was that he knowingly misled her, however it was initially held that the order would not have been substantially different. Supreme Court - rehearing was ordered, wife would have renegotiated her terms had she known about the sale. Court could not make consent order without valid consent. Was wrong to place on wife the burden of proving that the misrep would have made a difference.
S v S
“There will come a case… where the circumstances surrounding the prenuptial agreement… might, when viewed in the context of the other circumstances of the case, prove influential or even crucial”
M v M
Court were not bound by nuptial agreement, but could look at it and decide how much weight to attach to it.
Crossley v Crossley
Husband succeeded in establishing that any financial claim should be decided in accordance with the terms of the pre-nuptial agreement.
Radmacher v Grantino
Couple were married for 8 years and had two children. Wife had substantial family wealth, couple signed ante-nuptial agreement under which neither party was to benefit from the property of the other on termination of the marriage. Husband did not seek independent advice. By time of divorce he was a student. Held - for agreement to have full weight, couple must have entered into it of their own free will, without undue influence or pressure, and they had to have been informed of its implications. No black and white rules. Had there been any material lack of disclosure, information or advice? Were the parties fully informed and did they intend for the agreement to be binding? Duress, fraud or misrepresentation could negate the agreement. Circumstances of the parties at the time of the agreement might be relevant, as well as whether the marriage would have gone ahead without the agreement.
V v V
Marriage settlement signed agreeing that any property acquired by the husband would be his and not belong to the wife, but property acquired during the marriage would be marital property and would be shared, no provision made for divorce. At first instance she got majority of assets. Held - judge had adopted pre-Radmacher approach, more weight should be given to the agreement that the husband’s pre-marital property should be ring-fenced and not be treated as marital property.
Luckwell v Limata
Husband applied for financial provision on divorce in breach of pre-nuptial agreement. Held - fairness was overarching concern, first consideration was welfare of the children, not to be displaced by prenups. In this case - husband awarded money to buy house, when oldest child reached age of 22 the house was to be sold with 45% of the proceeds returning to the wife.
Calder v Calder
Husband’s inheritance moneys increased lump sum payable to wife
K v K
Inheritance potential not taken into account as wife’s mother was in good health
T v T
Opportunity to improve earning ability - court held that wife should make a real effort to find work, even if location wasn’t ideal and work was not what she would prefer.
B v b
No absolute principle of law that payments should be prevented in short marriages.
