Orders to be made Flashcards
What is a periodical payment order
provide with a regular income, they can be varied at any time to amount payable and the duration
McFarlane v McFarlane: Parlour v Parlour
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.
Which sections allow periodical payments to be made for an indefinite period considering what the court sees fit
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.
Which S allows to vary or discharge periodical payment orders
S 31
North v North
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.
K v K
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.
Flemming v Flemming
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
Section that deals with lump sums
The court also has the power to order one party to transfer capital to the other: MCA 1973, s.23(1)(c)(f)
What section provides for the purpose of lump sums
purpose is to meet expense needs
De Lasala v De Lasala
Capital orders are once and for all orders. They cannot be revisited or reissued.
What does S 23(3)(c) provide
payments by instalments McFarlane; Palour
What does S 31(2)(d) provide
orders can’t be varied unless they are payable by instalment
Hamilton v Hamilton
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
Which section allows for transfer
S 24(1)(a) MCA allows property to be transferred
Petrodel v Prest
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.
Which section allows for property settlements
S 24(1) (b)(c)(d)
What is a Mesher Order
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.
What is a Martin Order
settlement for life. Entitled to live in the house for his or her life.
Brooks v Brooks
HL decided that pension had nuptial element, so terms recognized that pensioner often married and the court could vary that settlement.
What is pension sharing
S 21 A(1) pension is divided an immediately transferred to establish an independent fund- facilities the clean break
What is pension attachment (earmarking)
S 25 F, You get some of your ex-partner’s pension when it starts being paid to them.
T v T
The law doesn’t require the court to make compensation for loss of pension rights
What is pension offsetting
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.
Burrows v Burrows
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.
Aziz v Azizi
‘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’.
