To what extent is it fair to say that the UK Parliament has abdicated responsibility for determining how property and money should be divided between adults when their relationship breaks down, and yet has exercised strict control over child maintenance? Have judges been left with too much discretion as between adults and too little in relation children?
The Parliament has vested very wide discretionary powers in the courts with regard to decisions undertaken in the dissemination of assets and maintenance upon divorce to the adults and children involved. The financial consequences to the parties involved in a broken marriage are of utmost significance to them. In addition to the emotional consequences is added the additional burden of deciphering their insecure and uncertain future.
Women involved in the breakdown of a relationship face uncertainty in terms of accommodation and income particularly with reference to any children under her care, whereas the men have to shoulder the burden of supporting two family units especially if they plan to establish a new family. It is evident that the Parliament has provided the fundamental guidelines for the courts to follow with regard to the financial aspects appertaining to the breakdown of marriage and all the parties affected.
The courts utilize these guiding principles; however they are known to exercise their wide discretionary powers in order to reach their decisions. The law pertaining to the division of assets on divorce is very complex. The reason for this inherent complexity is to a considerable extent the courts’ reliance on their discretion regarding apportionment of assets to the parties involved. The laws and guidelines provided by the Parliament are very generalized and provide a checklist which has to be followed by the courts. The said checklist is outlined in Section 25 of The Matrimonial Causes Act 19731.
The role of precedents in the development of the law in this regard can sometimes be of assistance however, the cases that come before the courts are usually based on unique facts and only general guidance can be retrieved from precedents. In fact, it is pertinent to note that there are no settled rules as per the apportionment of assets and maintenance on divorce. As a positive aspect it can be held that this situation provides flexibility to the courts and enables them to make orders which they deem fit based on the particular set of facts in question.
However, the downside to this aspect is that the flexible approach creates great uncertainty and a predictable outcome is a rarity in such circumstances. In such a case the law loses out on clarity and certainty while being regarded as embracing flexibility and adaptability.
The needs of the parties
The courts pursuant to Section 25 of the Matrimonial Causes Act 1973 consider the needs of the parties as one of the primary factors. In particular the courts have regard to, ‘the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future’2. With regard to relationships between civil partners the relevant law is found in the Civil Partnership Act 20043. The needs of the children affected by the divorce proceedings are of primary importance for the courts.
The needs of the parties affected by the divorce cannot be considered in isolation and the courts will take into cognizance the circumstances of the case in its entirety. The court will also consider all the relevant precedents in order to reach their decisions. Mostly the day to day needs of the parties are catered and there is a possibility where only one party would end up achieving their basic needs as an outcome of the decision made. In such decisions preference is usually given to a parent who has the responsibility of the day to day care of the children from the marriage.
The needs are categorized as the daily income and the housing needs. In deciding the quantum of the needs associated with each party the resources emanating from the relationship in question should be considered. There is always going to be a marked difference in outcomes associated with relationships with high net worth assets and those with limited means of income. Most of the cases are based on the income and housing needs of the parties. In considering the parties’ reasonable housing requirements the courts will decide upon the number of bedrooms that are needed for housing the children as well as the property prices located in the area.
The courts seek advice from the estate agents in order to ascertain reasonable housing needs of the parties involved. For the calculation of income needs of the parties lists are compiled with regard to the expenditure made by the parties on an annual or monthly basis. The schedules are of marked importance in order to ascertain the available resources of the parties to the marriage. The parties’ needs must never be overestimated while framing the schedules of income. The expenditure must always be proportionate and realistic and must adhere to the living standard of the parties during the marriage and the parties’ combined income. The courts can regard with incredulity and criticism any over ambitious income schedules that are submitted to them by the parties and can also raise questions as to the credibility of the parties in question.
In Miller v Miller4 and Mc Farlane v Mc Farlane5 the House of Lords held that fairness would be achieved through the division of assets in order to satisfy the needs of the children and the parties. In the case of Charman v Charman6 it was held by the Court of Appeal that pursuant to Section 25 of the Matrimonial Causes Act 1973 checklist the issue of needs must be considered in the light of principles of sharing and fairness. In cases where the parties are of high net worth the parties’ needs will be satisfied and hence the principle of sharing will be paramount.
However in cases where the parties have limited resources the needs will be considered as having more importance as opposed to the principle of sharing. In the case of S v S7 it was held by Baron J that the matter in question was, ‘quintessentially a needs case for, although the parties’ assets are somewhat in excess of £2 million, given each of them are relatively young and each of them needs a home, all their monies will be required to fund their lifestyle in the long- term future’.
In cases which are based on high net worth of the parties, preference can be given to the issue of needs pursuant to the Matrimonial Causes Act 1973, Section 25 and the Civil Partnership Act 2004, Schedule 5, Part 5 in affixing the quantum. In the case of Mc Cartney v Mills-McCartney8 the wealth of the parties during the marriage was very little compared to the husband’s net worth and hence one-half of the marital apportion was regarded as not sufficient for the wife as her reasonable needs were under consideration by the court.
In T v T9 the wife had been awarded 70% of the family assets in order to satisfy her housing needs and also in addition the needs of the child from the marriage. When the award was appealed the Court of Appeal held that the task of addressing the needs of the parties and the child from the marriage was a complex one given the limited resources belonging to the family.
The argument made by the husband was that the decision that had been made by the judge at first instance regarding the assets’ apportionment was unfair as it was excessively in favor of the wife. The husband held that the needs of the wife had been overestimated. Consequently the Court of Appeal held that the judge had exercised her discretion and that the disparity between the parties was a natural outcome of that.
The apportionment and disposition of assets between adults and the guiding legislative principles
In the case of disposition and apportionment of assets and maintenance as between adults, despite there being a plethora of precedents the starting point for the courts is usually paved out by the checklist set out in Section 25 of the Matrimonial Causes Act 197310. The courts are expected to have regard to the factors outlined in the said Section 2511 in the exercise of their powers. Pursuant to the tenets of The Matrimonial Causes Act 1973, the courts must have regard to the, ‘all the circumstances of the case’12.
The courts must appraise the issues13 involved in their entirety while reaching their decision. Pursuant to The Matrimonial Causes Act 1973 the courts must consider the welfare of any children involved who have not attained the age of 18 years. This entails that consideration must be given to the needs of the children which will be affected adversely following the breakdown of their parents’ marriage, in particular the income and housing needs. The overriding statutory principles14 which the court must have regard to while framing their decision do not follow any particular order of preference15.
However, more weight can be given to certain factors compared to others depending on the individual facts of the case in question:
the income, earning capacity, property and other financial resources that each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity that it would, in the opinion of the court, be reasonable to expect a party to the marriage to take steps to acquire
the financial needs, obligations and responsibilities that each of the parties to the marriage has or is likely to have in the foreseeable future
the standard of living enjoyed by the family before the breakdown of the marriage
the age of each party to the marriage and the duration of the marriage
any physical or mental disability of either of the parties to the marriage
the contributions that each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family
the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it
in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit that, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring
The Matrimonial Causes Act 1973 holds that the courts must consider the possibility of achieving a clean break with regard to the facts of the cases of divorce and nullity proceedings. It is expedient that the courts examine all the factors outlined in the statute and the facts of the case in order to conclude whether a clean break can be deemed appropriate in the circumstances. There is however, no presumption in favor of a clean break order in all cases even though the courts are under a duty to consider it. In case of civil partnerships the law applicable is similar to that applicable to married partners. In the case of Lawrence v Gallagher16, it was stated that17 a claim arises from the dissolution of a civil partnership rather than on divorce is of little significance.
The following matters are to be considered by the courts in such cases18
the income, earning capacity, property and other financial resources that each civil partner has or is likely to have in the foreseeable future, including, in the case of earning capacity, any increase in that capacity that it would, in the opinion of the court, be reasonable to expect a civil partner in the civil partnership to take steps to acquire
the financial needs, obligations and responsibilities that each civil partner has or is likely to have in the foreseeable future
the standard of living enjoyed by the family before the breakdown of the civil partnership
the age of each civil partner and the duration of the civil partnership
any physical or mental disability of either of the civil partners
the contributions that each civil partner has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family
the conduct of each civil partner, if that conduct is such that it would in the opinion of the court be inequitable to disregard it
in the case of proceedings for a dissolution or nullity order the value to each civil partner of any benefit that, because of the dissolution or annulment of the civil partnership, that civil partner will lose the chance of acquiring
The Court of Appeal in Lawrence v Gallagher19 made use of the precedents regarding financial aspects in divorce in cases appertaining to civil partnerships. The Supreme Court refused an application for permission to appeal in Lawrence v Gallagher20 based on the premise that the case did not raise points of law of general public importance21.
The needs of the children in light of the legislative principles and precedent
With regard to the grant of maintenance in the case of children under 18 years of age involved in the breakdown of marriages, the court must consider the all important issue of their welfare. The court must consider this aspect in the exercise of their powers pursuant to Sections 23, 24, 24 A or 24 B of The Matrimonial Causes Act 1973, or in the case of a civil partnership, The Civil Partnership Act 2004. However, this does not entail that the welfare of minor children involved is an overriding consideration in the framing of the courts’ decisions.
This simply means that in the event of an application for a financial order made by a parent the court should consider the pressing issue of the children’s financial and shelter needs. These needs are of a greater significance when compared to any other considerations especially in cases where the parties are of limited means22. The financial claims pertaining to children can be made separate from the parent23. In the decision of White v White24, it was held by the House of Lords that it is expedient that a fair outcome is achieved based on the facts of the case. In certain cases an equal apportionment of assets for both partners to the marriage may be deemed feasible in the circumstances but particularly in cases where there are limited means the needs of children and primary carers will definitely overtake any possibility of equal apportionment of assets. The significance of the fairness approach was outlined by the Court of Appeal in Charman v Charman25.
It was held by Thorpe LJ in Re S (a child)26 that a child’s security is a major factor in establishing what was in the best interests of the child and that the needs of a child are separate and distinct from the needs of the mother27. The court has to consider issues such as financial support for the children’s shelter and also heir everyday expenses such as food and clothing. In deciding upon these factors the court should have particular regard to the family’s living standards28 and the facts of the case as well29. The courts in such cases where the maintenance for children and their needs are primary considerations, seek guidance in the statutory provisions.
However, with regard to married or civil partners the question of maintenance is considered a separate entity altogether. In the apportionment of the maintenance for married or civil partners there is a conscious effort on the part of the courts to separate the needs of the two parties based on the issue of degree of vulnerability. In the case of F v G30 there was an application by the mother for maintenance from the wealthy father and she had sought to live with the child in the family property. The court allowed the mother’s application and the living standard enjoyed by the child was one of the important circumstances to be considered by the court in reaching their decision31. It was held that the extent to which a child had become accustomed to a particular level of lifestyle could impact on an evaluation of their needs32. With regard to children with disabilities and special needs the special need or disability in question would be considered a special circumstance by the courts while making an order because they can even extend the duration of the maintenance order to endure beyond the 18 year mark. In such circumstances the court’s primary consideration would be to adequately safeguard the interests of the children with disabilities and the courts can make orders for periodical payments or even lump sum payments especially in case special equipment, medicines or care are required.
It is evident that the guidelines provided by the legislature with reference to the needs of all the parties to the divorce including children are scanty. Though it is fair to some extent to hold that this leaves more room for flexibility it is also indicates the possibility of uncertainty. The guidelines for both the adults and children alike do not provide any hard and fast rules and therefore the discretion that is left with the courts is very wide. Though the courts give more preference to the needs of the children and/or primary carers as compared to the other parties involved, it is safe to say that the legislature does not provide any stringent laws appertaining to children’s needs.
In both the cases the courts have wide discretion and though they adhere strongly to the guiding legislative principles, their decisions are different on a case to case basis and uncertain. It is therefore difficult to foresee what outcome might be achieved based on a particular set of facts be it the case of the needs of the children or the adults involved. Therefore it is safe to say that there is wide discretion placed with the courts with regard to both the needs of the children and the adults involved in divorce.
1 The Matrimonial Causes Act 1973, Section 25.
2 The Matrimonial Causes Act, Section 25 (2) (b).
3 The Civil Partnership Act 2004, Schedule 5, Part 5.
4 Miller v Miller  UKHL 24.
5 Mc Farlane v Mc Farlane  2 FCR 213.
6 Charman v Charman  2 FCR 217.
8 McCartney v Mills-McCartney  EWHC 401 (Fam),  1 FCR 707.
9 T v T  EWCA Civ 774,  3 FCR 453.
10 The Matrimonial Causes Act 1973, Section 25.
11 The Matrimonial Causes Act 1973, Section 25.
12 The Matrimonial Causes Act 1973, Section 25 (1).
13 The Matrimonial Causes Act 1973, Section 25 (2).
14 The Matrimonial Causes Act 1973, Section 25 (2).
15 Piglowska v Piglowski  EWCA Civ 2622.
16 Lawrence v Gallagher  1 FCR 557.
17 Lawrence v Gallagher  1 FCR 557, Thorpe LJ.
18 The Civil Partnership Act 2004.
19 Lawrence v Gallagher  1 FCR 557.
20 Lawrence v Gallagher  1 FCR 557.
21 Lawrence v Gallagher  1 FCR 557.
22 The Matrimonial Causes Act 1973, The Civil Partnership Act 2004.
23 The Children Act 1989, Schedule 1.
24 White v White  1 A.C. 596.
25 Charman v Charman  EWCA Civ 503.
26 Re S (a child)  UKSC 20.
27 Re S (a child)  UKSC 20, Thorpe LJ, Application for financial provision under The Children Act 1989, Section 15.
28 The Matrimonial Causes Act 1973, Section 25 (2) (c).
29 The Matrimonial Causes Act 1973, Section 25 (1).
30 F v G (Child: Financial Provision)  1 FLR 261.
31 F v G (Child: Financial Provision)  1 FLR 261, Singer J.
32 F v G (Child: Financial Provision)  1 FLR 261, Singer J.
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