Financial relief Flashcards
Kehoe v SSWP [2005] UKHL
enforcement mechanism
Held the CSA 1991 did not confer any right on a caring parent to recover or enforce a claim to child maintenance against an absent or non-resident parent. This was not an omission, but was the essence of the new scheme. The former right to recover maintenance had been removed, and had been vested in the Agency.
in the act that the payee can use: so if other person owes money, there is nothing you can do to force the person to pay money, child support agency only has those powers.
Rowley v SSWP [2007] EWCA
The Secretary of State for Work and Pensions did not owe a common law duty of care in negligence to an applicant for child support under the Child Support Act 1991 as such a duty would be inconsistent with the statutory scheme.
Currey v Currey [2006] EWCA
section 22 MCA 1973 - Maintenance pending suit
22ZA and B were added
Where one party in an ancillary relief claim was not entitled to legal aid, but showed a need for legal representation which he or she could not afford, the court could make an order requiring the other party to make a costs allowance.
AMS v Child Support Officer [1998] COA
we Don’t see this very often because if you have enough money to put aside a lump sum to pay maintenance then there should really be a clean break and just give that lump sum money to the other person, do not bother with maintenance.
McFarlane v McFarlane: Parlour v Parlour [2004] EWCA
Distinction between lump sum and periodic payments. Parlour went to HOL with Miller v Miller said this distension between income and capital holds no relevance. Court held clean break was appropriate but held he had to pay very high periodic payments to get this lump sum. High income, low capital. HOL held it was fine to use periodic payments as a method to get a lump sum.
Held: The distinction between capital and income awards is no longer conclusive, having arisen in part from historical causes. Once each party had been put in a position to satisfy their reasonable income needs, the balance of available income could be divided between the parties:
Fleming v Fleming [2003] EWCA
if you remarry then you automatically loose settlement arrangements, absolute rule.
28(3) MCA 1973
The husband and wife were married for 17 years and had four children. H had to pay W maintenance. The wife had been cohabiting for over 5 years. The judge, although he accepted that the combined incomes of the wife and her cohabitant were sufficient to discharge their combined living expenses, allowed the wife’s application for a variation of the periodical payments order, awarding her more money. The husband argued, inter alia, that the cohabitation was a quasi-marital relationship. Held: cohabitation was not to be equated with marriage did not need to be revisited and remained as sound now as it had been 15 years ago, notwithstanding social changes.
North v North [2007] EWCA
Couple got divorced, both wealthy, husband required to pay wife 5p a year because she had thousands of pounds of wealth. She then lost all her money. 20 years later she asks for a variation of the order. HC granted her request which was upheld by COA. Held: the bad investments were not her fault so court thought this was fair.
K v K (Periodical Payment: Cohabitation) [2005] EWHC
, if you live with someone new the HC said that these days living with someone is similar to being married so effect of re marriage should be the same if you start living with someone else. This was disapproved of in Grey.
IMPORTANT they had been fully involved in each other’s financial affairs. they had been fully involved in each other’s financial affairs.
Fleming v Fleming [2003] EWCA
COURT OF APPEAL
– although remarriage automatically brings to an end to pay, there is a discretion for the courts, it has no automatic effect. There is no presumption. It depends on circumstances, will take this into account when varying the order.
Grey v Grey [2009] EWCA
COURT OF APPEAL
courts discretion when cohabitation.
Sympathetic as I am to Coleridge J’s wish, in K v K (Periodical payment: Cohabitation) [2005] EWHC 2866; to move the law on and to achieve greater certainty for practitioners, I am satisfied that any change such as that proposed by Mr. Pointer would have to be introduced by Parliament. The power to award financial provision is statutory. There is a limit to the extent to which the courts can interpret statute.
de Lasala v de Lasala
RATIO: Where capital claims are compromised in a once-for-all court order they cannot be revisited
Hamilton v Hamilton [2013] EWCA
COURT OF APPEAL
A lump sum payable in one go cannot be varied in the future. But lump sum payable in instalments can be varied before last instalment is paid. It will be a question of fact whether of not what was ordered by court was one amount of money or whether what was ordered was a number of separate lump sum payments. Each lump sum cannot be varied because it is a lump sum, but if it is one lump sum in instalments it can be paid. Question of fact if it is a series of lump sums which can be varied or not. In Hamilton although lump sum word was used, when looking at the order it was separate lump sums which therefore could not be varied.
Petrodel v Prest [2013] UKSC
SUPREME COURT
Supreme court, issue was could a wife get hold of assets belonging to husband, even though it was assets of a company he owned. Was that his property or husbands? Court found that it Is the husbands because there was one sole beneficiary which was the husband, the man and the company were the same thing so assets could be given to wife.
Mesher v Mesher
Mesher order: named after case which it was named. Mesher order was made (sale of house) was made until youngest child became adult. You make this order where jointly owned house, wife stay in house with kids and then house will be sold after child has become adult. But decree of uncertainty.
Elliott v Elliott
) long mariage 19 years, not lots of money both parties contributed financilly to pay mortgage so deal was that the wife stays in house until 18 birthday of youngest child then house will be sold and husband gets his share.
Martin (B.H.) v Martin (B.W.)
Martin order: house is settled on trust for the lifetime of the benefiting spouse. No prospect for one partner being able to fund their accommodation. This is a lifelong obligation.
Lake v Lake [2006] EWCA
COURT OF APPEAL
court has powers to transfer a tenancy, this was a domestic violence case but can be done in a divorce package.
T v T (Financial Relief: Pensions)
Court held that there is a disruption to use these powers they do not have to use S25E powers (pension sharing/attachment)
Burrow v Burrow
burrow was 15 years till pension age. Court held with people that age the court should split the pension because we do not know if Burrow will live till that age. Plus difficult to predict the stock market. Therefore, unless close to pension age the pension will be splits.
Aziz v Fisher-Aziz [2010] EWCA
COURT OF APPEAL
if the wife in occupation of the final matrimonial home (having primary regard to the interests of the children) seeks the transfer of the property, in preference to the proceeds of sale of the property, she should ordinarily succeed
Piglowska v Piglowski HL
HOUSE OF LORDS!
couple with £127 thousand on assets who spent more than this on solicitors with how the assets should be divided. HOL held that the lower courts should take a realistic approach and not ignore the broader financial context. Courts should be realistic.
HL made clear that considerations in section 25(2) are not ranked in hierarchy.
Practice Direction (Fam Div: Ancillary Relief: Costs) [2006]
appellate courts will only interfere with first instances where it is “plainly wrong”, only where a decision is plainly wrong will an appellate court interfere. We are not looking for a right answer but a reasonable answer.
Vaughan v Vaughan [2007] EWCA
COURT OF APPEAL
lower court judges should produce a balance sheet. What P1 walks away with and what P2 walks away with, write in on paper to check if this is a reasonable decision.
Sharland v Sharland [2015] UKSC
SUPREME COURT
There is a duty to provide a full and frank disclosure to the courts. MR SHarland owned company worth £60 million, he also owned £17 million. It was agreed that Mrs Sharland would get a £10 million sum, and when the company was sold, in some undefined future, she would get 30% from it when he sold it at some point in the future. But he did not tell the courts that he planned to sell it very soon, moreover, the business was worth much more than he stated. Court made the consent order, wife appealed that husband had not disclosed his assets. Yes, husband misled court, but court said you only need to deal with sum not known about deal with the new sum of money, do not need to rehear case, just need to apply it.
Schuller v Schuller
COA
Everything that belongs to both the spouses is available for redistribution by the courts, including the inheritance one party received after the divorce.
M v M [2004] EWHC
wife wanted share of husband’s future earnings, which was in the millions. Court said future earning as not entitlement where a clean break is possible. Can do what is fair without touching inheritance property or future earnings, if you need to the court can do this, but if you do not have to do this. The court will do what is needed to do when looking at fairness.
In Miller Lord Nicholls said
Short marriage and no children.
Mcfarlane: long marriage children. Wife gave up lucrative career. she should be compensated for the comparable position which she might have been in hd she not compromised her own career”. - this comes from H future earnings.
these checklist factors apply to all marriages/civil partnership and in particular the courts will not discriminate between breadwinner contribution and other contributions (raising children), there should be no discrimination between the two. Fairness is the underlining principle; this means no biased in favour of either. Statute does not say apply equality, so fairness is not necessarily equal.
Ideally, if it is a family air loom then you can keep it, but if need to sell it to be fair that is what you will do.
In Miller, Baroness Hale identifies 3 factors
1) Need (give what they need)
2) Compensation (to compensate child rearer and money you haven’t earned etc)
3) Sharing (then anything that is left, you share it equality.
Hale was more reluctant than Lord Nichollas to make a distinction between business and relationship property, she said this is not a valid distinction because she would not know where to draw the line.
Lord Nicholls said where two couples share a property, if they lived in it together as a couple this is always possible for redistribution EVEN where man solely owns the whole house.
Robson v Robson [2010] EWCA
, Lord Justice Ward said husband had 22 million in assets, he was breadwinner, she was child rearer, married 20 years, children had grown up, wife given 8 million on basis that husbands 22 million was acquired before marriage as inheritance assets. Husband appealed against 8 million award saying to give her that much you would need to sell property and this would-be detriment to him and business arrangements, court agreed and reduced sum to 7 million to reach the requirements, need, compensation and sharing. 8 to 7 million can avoid drastic businesses. Court says we depart from equality here because it is in no one’s interest for husband’s business fails.
Green v Green [2006] EWHC
where spouse/partner is a trustee of property belong to another property, this is not within the courts discretion and cannot redistribute.
Whaley v Whaley [2011] EWCA
where one party is a beneficiary of trust this is different. husband order to pay lump sum of £7 million to ex wife, he could only access 7million by accessing trust fund of which he was a beneficiary. Husband appealed that court has no power to make trustees act in a different way that they would have. LJ Black said wording of s25(2)(a), it is the “resources the parties are likely to have in the future” and here it is what is the attitude of trustees, would they pay the £3 million to wife, if trustees had no problem then this was family property, if they refused or were reluctant than it was not family property. Here, the trsutees who were parents would pay so it was family property.
Petrodel v Prest [2013] UKSC
husband assets owned by company, as he was sole beneficiary of company they were his, so they were available for redistribution. Look at realities not the technical legal paper.
Hardy v Hardy (1981)
Hardy earned £70 a week, working for his farther, in some point in future he would inherit his father’s lucrative business, Mr Hardy’s current lifestyle was not of a person earning £70 a week so his dad obviously gave him money Court held he should be required to pay money which reflects his true wealth not his paper wealth so wife got a bit more money. Could not have a lump sum because do not know when H wold get money in future when dad died unknown
Hutchings-Whelan v Hutchings [2012] EWCA
lump sum paid to wife, then discovered that husband had other considerable assets, once discovered, he still would not say how much he got, the wife then had to make a guess. The court then had to guess the reality of situation and husband got the order on the basis of the guess.
N v F (Financial Orders: Pre-Acquired Wealth) [2011] EWHC
) man gave up lucrative job in city to become a teacher, wife said he should be judged on basis of what he could be earning in the city, rather than the £55,000 being a teacher. Court did not agree, he had given up job in city to be a teacher, this could not be accounted against him. In this case, he did not give up lucrative job to avoid paying money to wife so it can’t go against him.
Leadbeater v Leadbeater [1985]
Mrs Leadbeater gave up job to be a housewife, marriage lasted 20 years, how much could she be expected to earn after divorce, court decides that as a woman who was 47 she is too old to retrain for work that would earn her a decent amount, she had previous experience but this was out of date, she would only be able to work which gave her a modest income.
Launder v Launder [2007] EWHC
court talks about the needs to compensate wife for her giving up job and being a housewife, years she has scarified. Reduced earning capacity is something which is to be compensated for.
Macey v Macey [1982]
earning capacity of new partner cannot be taken into consideration for s25(2)(a) resources, it can only be taken into account when reducing the needs of H.
Atkinson v Atkinson [1987]
marrying someone automatically extinguishes the right of maintenance, but in this case she just moved in with another man, this did not distinguish the maintenance but reduced obligation fort he amount hte husband had to pay.
Suter v Suter [1987]
moved in with new man she received maintenance for her and children from husband, husband goes to court for variation. Court would not end maintenance all together because unsure how long her new relationship would last, so husband would have to pay a nominal sum of £1 per year.
he duty to consider the children first, was neither a duty to consider them first in time, nor to give them paramount importance. In fact the phrase has been criticised as meaningless.
As to conduct: ‘It is right, having regard to the wife’s conduct in inviting the co-respondent effectively to live in the matrimonial home without requiring him to contribute anything to its costs, to reduce the periodical payments to her so as to reflect the amount which the co-respondent could and should contribute. Such conduct can and should be taken into account under section 25(1) in assessing the appropriate level of periodical payments’
1) s25(1) first consideation does not mean paramount - clarified.
Hepburn v Hepburn [1989]
lived with new partner after divorced, received maintenece of 7 years whilst living with partner, husband applied for maintence to end. Court holds that it was not certain that wifes relationship would last with new man so nominal order was not made
Fletcher v Fletcher [1985]
husband was unemployed, paid maintence to his ex wife but could not afford to pay because he was on unemployment benefits.COA said where someone is on job seekers allowence then there is no spare money in that persons income, this money of benefits is to keep them on poverty line and the courts will not take someone below povety line.
Ashley v Blackman [1988]
both parties on benefits, should husband be obliged to pay maintenance to wife? Held: no any money paid to her takes him below poverty line (Fletcher) and any money given to her means less job seekers allowance. Therefore, there should be a clean break and the public should give them benefits.
