fincial issues on divorce and dissolution

Question 1

inequalities in marriage and divorce

Answer 1

-marriage makes women economically vulnerable- susan moller okin
-“research emphasises that divorce and seperation are a significant financial risk to women left vulnerable by joint decisions made whil they were in long-term relationship”- Tracey McVeigh 2017
-“the average divorced woman has less than a third of the pension wealth of the average divorced man”- ibid

Question 2

what is the principles of a clean break

Answer 2

-as far as possble the job of the courts it to achieve a clean break between the parties on divorce to achieve autonomy (end all financial ties)
-Barnoss Hale in Miller v Miller described this as a positive act
likely in short marriages with no kids
-innapropriate where still young children suter v suter and jones 1987

Question 3

examples of support/maintenance of children

Answer 3

periodic payments
lump some order
property order

Question 4

child support

Answer 4

-payments can be ordered by the court via the children act 1989
-or through the child support acts

-polly Toynbee-main reason why father dont pay is by using the self employment argument

-required to pay for a child if they are a child of the family (treated child as this, step children/adopted)

Question 5

financial orders for spouses

Answer 5

-MCA 1973 and CPA 2004 gives extensive court powers to redistribute property between spouses and to require ongoing financial support
-available on divorce
-if no order made parties can apply at any time later for an order,
Wyatt v vince 2015- wife brought up children in poverty after divorce, no consent order, husband then became millionare and in 2011 she made application and awarded finance even though being divorced for years (could have been prevented with consent order)

Question 6

types of financial orders

Answer 6

periodic- pay over time
lump sum- fixed sum of money
property adjustment- transfer to the other of interest in a property
pensions sharing- splitting ones pension to share between them

Question 7

section s5 MCA- lists factor to consider when deciding financial orders

Answer 7

-(1) how they can support the welfare of the children until the age of 18
B v B 2002- all assets of the couple required to meet the needs of the child and the carer mother
-(2) what recources they have now and likely to have in foreseeable future that would be reasonable to be expected to share (earning capacity/property..) intention with the clean break principle
A v A 1998
-(2)(b)- financial needs,obligations and responsibilities which each partu has or is likely to have in foreseeable future
S v S 2002- second family taken into account but H-J v H-J 2002- they should not
-(2)(c)- there lifestyle during the marriage
K v L 2011- lives simple lives despite wifes share holding worth millions of pounds. reason to not give husband half
-(2)(d)- age of parties and duration of marriage (short and no children can use clean break)
Miller v Miller 2006- short marriage, only marital assets divided
-(2)(e)- particular needs (physical and mental disbailities)
C v C 1995- disabled husband needed all money
-(f)- contributions (includes looking after the home or caring for the family)
white v white 2000- principles of equality, contributions of home making or child caring were regarded as equal to those of the money earner
-(g) conduct, if it is in the opinion of the courts to be inequitable to diregard it
H v H 2005- husband attempted murder wife infront of child
-(h) lost benefit due to divorce or nullity (i.e sharing pension)
Martin-Dye v Martin-Dye 2006- pensions share which she would otherwise not have been entitled to

Question 8

departure from principle of equaliry in sharing aseets (white v white)

Answer 8

-b v b 2002, husband obducted child and hid assets, conduct amounted to not adhereing to equality
- a mesher order
- S v AG 2011- wife won money on lottery and secretly bought house in own name during unhappy marriage, was treated an non matrimonial property
-sorrell v sorrell 2005- money maker husband argued that he made an outsatnding contribution to the marriage through an exceptionally successfull career (wife a sort of side kick)
-Charman v charman 2007- short marriage and shared marital acquest which was low as claime mcartney earned less during marriage (defined marital acquest as peoperty acquired during the marriage other than by inheritance)

Herring- principles of equality must be upheld more stingently

sharp v sharp-courts should begin with principle of equal sharing unless clar intention indictaed otherwise:
short marriage, dual careers/dual incomes, seperate finances and no children

Question 9

support for equality principle from white v white

Answer 9

miller v miller, McFarlane v McFarlane 2006
judgement recognised impact of childcare on income capability

Question 10

advantages and disadvantages of clean break orders

Answer 10

-perties free to pursue ow careers or start new ones without fear that their actions will lead to applications to vary maintenance payment
-emotional reasons, feel that they are completely released from marriage when financial issues resolved
-parties free to remarry without risk of losing her maintenance
-avoids future problems in the payment and collection of periodic payments
-fails to consider the disadvanatges that flow from childcare continuing beyond the end of the marriage
-whatever tragedy befalls the parties, the courts cannot reopen the court order