Orders to be made

Question 1

What is a periodical payment order

Answer 1

provide with a regular income, they can be varied at any time to amount payable and the duration

Question 2

McFarlane v McFarlane: Parlour v Parlour

Answer 2

Joint case, CA. Footballer - involved situation where high income but no capital. Court said can use periodical payments to, in practice, transfer a lump sum. Method to get one sum from one party to another where there are no savings but a high income.

Question 3

Which sections allow periodical payments to be made for an indefinite period considering what the court sees fit

Answer 3

S 28(1) and S 25A(2)
s.28(1)- maintenance claim duration limits: death and re-marriage. 

s.25A(2)- term should be sufficient to enable the party in whose favour the order is being made to adjust without due hardship to the termination of his/her financial dependence on the other party.

Question 4

Which S allows to vary or discharge periodical payment orders

Answer 4

S 31

Question 5

North v North

Answer 5

Husband had contributed more over the years than the order required. Wife chose not to work and had lost money on investments.
the discretionary exercise should be conducted afresh.

Question 6

K v K

Answer 6

Cohabitation provides a reason to terminate periodic payment
The effect of cohabitation is a messy area of law and current legislation is not adequate to deal with it. There is no reason why the court should not order a termination of periodical payments after cohabitation of a certain period, nor does the MCA prohibit it. Cohabitation must impact the level of capitalisation required by way of reduction of the period of the wife’s dependency.

Question 7

Flemming v Flemming

Answer 7

Husband appealed again an order allowing the wife to extend a term maintenance order on the grounds that the judge had not given sufficient weight to the ‘settled relationship’ between the wife and her cohabitee.
Although cohabitation should not be equated with marriage, the judge can take it into consideration

Question 8

Section that deals with lump sums

Answer 8

The court also has the power to order one party to transfer capital to the other: MCA 1973, s.23(1)(c)(f)

Question 9

What section provides for the purpose of lump sums

Answer 9

purpose is to meet expense needs

Question 10

De Lasala v De Lasala

Answer 10

Capital orders are once and for all orders. They cannot be revisited or reissued.

Question 11

What does S 23(3)(c) provide

Answer 11

payments by instalments McFarlane; Palour

Question 12

What does S 31(2)(d) provide

Answer 12

orders can’t be varied unless they are payable by instalment

Question 13

Hamilton v Hamilton

Answer 13

Ancillary relief consent order made in 2008 provided for the wife to pay the husband 5 lump sums on different dates. Lump sums payable this way could be varied

Question 14

Which section allows for transfer

Answer 14

S 24(1)(a) MCA allows property to be transferred

Question 15

Petrodel v Prest

Answer 15

husband had a company which had considerable assets, he said that this was not his money so could not be included in the sums. Supreme Court disagreed, this could be transferred as he was the sole owner and sole beneficiary of the assets so it was his money and property.

Question 16

Which section allows for property settlements

Answer 16

S 24(1) (b)(c)(d)

Question 17

What is a Mesher Order

Answer 17

Mesher v Mesher: - for the sale of the family home the proceeds ot be divided between the spouses. But that order was postponed to the 17th birthday of the youngest child who was living with the mum in the matrimonial home. SO delayed until a point, normally a birthday of the youngest.
-Order used when not enough finances in the family to resolve.
The court do not use this a lot, it ties the party with the child into the house, and not certain how much the house will be worth in the future.

Question 18

What is a Martin Order

Answer 18

settlement for life. Entitled to live in the house for his or her life.

Question 19

Brooks v Brooks

Answer 19

HL decided that pension had nuptial element, so terms recognized that pensioner often married and the court could vary that settlement.

Question 20

What is pension sharing

Answer 20

S 21 A(1) pension is divided an immediately transferred to establish an independent fund- facilities the clean break

Question 21

What is pension attachment (earmarking)

Answer 21

S 25 F, You get some of your ex-partner’s pension when it starts being paid to them.

Question 22

T v T

Answer 22

The law doesn’t require the court to make compensation for loss of pension rights

Question 23

What is pension offsetting

Answer 23

The value of any pensions is offset against other assets.

For example, you might get a bigger share of the family home in return for your ex-partner keeping their pension.

Question 24

Burrows v Burrows

Answer 24

although greater fees and less overall would rather split then earmark a pension. 15 years is too late to wait for earmark preference for splitting.

Question 25

Aziz v Azizi

Answer 25

‘As a matter of general principle, it seems to me that 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, providing of course that she can secure the release of the co-owner from the mortgage or charges attached to the property’.