What Orders Might a Court Make In Relation To Income, Capital, And Property - Assignment Example

FAMILY LAW Introduction Prior to the year 1700, there was no divorce in England. It was impossible for a spouse to contract a second marriage, or to terminate a present vexatious - and in some cases - cruel one, without violating the law. Family law in England has evolved since then. It has been opined in fact that the introduction of a liberalized, no fault divorce law has had a marked effect on divorce rates in England and Wales. (Binner & Dnes, 2001) It is now possible to procure a divorce through the Court on the following grounds: (1) adultery by the respondent, (2) unreasonable behavior, (3) desertion by the respondent for two years or more, (4) separation for two years and the parties agree, and (5) separation for five years. This is clear from the Matrimonial Causes Act of 1973. However, aside from issuing a divorce decree, the court may also intervene to resolve the convoluted financial entanglements that more often than not, take place when a relationship comes to an end. What initial steps could be taken to provide Naomi with income In this case, Naomi may file a petition for ancillary relief, in particular an order for maintenance pending suit pursuant to 2.53 of The Family Proceeding Rules 1991. It must be made clear that though a divorce terminates a marriage, it does not terminate the relations of the spouse to each other, in the sense that the court may validly order one spouse to financially support the other, particularly if there is a disparity in financial resources. Upon receipt of the application for ancillary relief, the court fixes a first appointment and then provides notice to both parties, particularly to the spouse from whom support is demanded. This is to ensure that the requirements of due process are met. Interim orders may also be made by the court in cases wherein the immediate financial assistance is needed. Naomi can avail of this remedy to ensure that her needs are met and she receives uninterrupted support. Of course, Naomi must present evidence to prove that she is indeed in need of financial support. This is to prevent turning an already-painful divorce process into an opportunistic game. The evidentiary requirements may be found in the Family Proceeding Rules 1991. Pursuant to these Rules - General provisions as to evidence etc on application for ancillary relief 2.58-(1)A petitioner or respondent who has applied for ancillary relief in his petition or answer and who intends to proceed with the application before a district judge shall, subject to rule 2.6 7, file a notice in Form M 1 3 and within four days after doing so serve a copy on the other spouse. (2)Where an application is made for ancillary relief, not being an application to which rule 2.61 applies, the notice in Form M I I or M 1 3, as the case may be, shall unless otherwise directed be supported by an affidavit by the applicant containing full particulars of his property and income, and stating the facts relied on in support of the application. (3)Within 28 days after the service of an affidavit under paragraph (2) or within such other time as the court may fix, the respondent to the application shall file an affidavit in answer containing full particulars of his property and income. Naomi may also petition the Court for an issuance of a maintenance order, which will allow Joshua to pay her in increments. A maintenance order may be nominal or specific. It is nominal if there is uncertainty as to the capacity to pay of the respondent and there is a need to keep the action alive. It is specific if definite dates have been set. Moreover, though Naomi and Joshua have been married for only through years, the she is entitled to the same rights as a spouse after a long-term marriage. This is clear in a very recent House of Lords decision. In the case of Miller v. Miller (2006 UKHL 24), the Court held that the benchmark for division should be equal shares, and the length of a marriage should not be a consideration. Three main considerations should be looked upon - financial needs, compensation and equal sharing. Further, the Court had occasion to define what "fairness" means. In its elegant words: This element of fairness reflects the fact that to greater or lesser extent every relationship of marriage gives rise to a relationship of interdependence. The parties share the roles of money-earner, home-maker and child-carer. Mutual dependence begets mutual obligations of support. When the marriage ends fairness requires that the assets of the parties should be divided primarily so as to make provision for the parties' housing and financial needs, taking into account a wide range of matters such as the parties' ages, their future earning capacity, the family's standard of living, and any disability of either party. Most of these needs will have been generated by the marriage, but not all of them. Needs arising from age or disability are instances of the latter. What orders might a court make in relation to income, capital and property Pursuant to Section 23 of the Matrimonial Causes Act of 1973, the Court may make several orders that relate to income, capital and property. It may order the payment of periodical payments by either party to the other, or it may also issue an order for the payment of lump sums. an order that either party to the marriage shall pay to the other such lump sum or sums as may be so specified. These periodical payments or lump sum payment may be specified to benefit a child of the family. As has been stated earlier, the Court may make interim orders as well. With regard to capital and property, the Court may issue a "Property Adjustment Order", which would transfer property to the spouse entitled to such property, or to the children of the family. The Court may likewise issue an order for the sale of the property, and if the circumstances warrant, determine the individuals to whom the sale should be made. It is also justified for the Court to make an order modifying the terms of a pre-nuptial agreement if such is deemed to be onerous, one-sided, contrary to public policy, or threatens to imperil the rights of any child of the family. Lastly, the court may also direct a sharing of the pension fund. What matters would the court take into account in deciding the allocation of income, capital and property According to the Matrimonial Causes Act of 1973, the Court should be guided by a certain set of standards in deciding the allocation of income, capital and property. The Act sets these guidelines: 25 Matters to which court is to have regard in deciding how to exercise its powers under ss 23, 24 and 24A 1. It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24 or 24A above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen. 2. As regards the exercise of the powers of the court under section 23(1)(a)(b) or (c), 24 or 24A above in relation to a party to the marriage, the court shall in particular have regard to the following matters - a. the income, earning capacity, property and other financial resources which 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 which it would, in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire; b. the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; c. the standard of living enjoyed by the family before the breakdown of the marriage; d. the age of each party to the marriage and the duration of the marriage; e. any physical or mental disability of either of the parties to the marriage; f. the contributions which 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; g. 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. h. in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party wil lose the chance of acquiring. Clearly, this means that the Court makes a determination on a case-to-case basis, believing that each marriage is unique and each set of circumstances different from the other. For example, in this situation, it is only correct to take into consideration the financial capacity of both Naomi and Joshua, the income they already have and the income that they stand to gain. It is also important to note the existence of children from previous relationships so as to ensure that their rights are protected. Worthy of note is the fact that children are the paramount consideration of British Law when it comes to the determination of financial arrangements of a divorced couple. This is because of the recognition of the fact that children are the most vulnerable parties during the aftermath of a divorce and it is but right to give their needs - psychological, emotional, financial - primacy. Since one issue presented by the given facts is the existence of inheritance, it is important to note what the Court said in the White case ([2001] 1 AC 596, 610) "Plainly, when present, this factor is one of the circumstances of the case. It represents a contribution made to the welfare of the family by one of the parties to the marriage. xxx The nature and value of the property, and the time when and circumstances in which the property was acquired, are among the relevant matters to be considered. However, in the ordinary course, this factor can be expected to carry little weight, if any, in a case where the claimant's financial needs cannot be met without recourse to this property." What child support would be available for Daniel Indeed, the costs of divorce are tremendous for a child. (Maccoby & Mnookin, 1993.) Hence, the court should use its parens patriae powers to cushion the devastating effects of marital discord. Daniel is entitled to child support and his needs are the first consideration of the Court. Financial provision orders and property adjustment orders may be made by the court for his benefit, to ensure that his well-being is not imperiled by the deterioration of his parents marriage. For example, in Section 23 of the Marital Causes Act of 1973, Section 23 allows the court to make "an order that a party to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such a child, such periodical payments, for such term, as may be so specified." His needs - whether for clothing, shelter food, health, education when he grows up - may rightly be demanded from Joshua. However, the Joshua should also be given visitation rights to Daniel. That the ties between a biological parent and a child should remain intact after divorce has been reinforced time and again. (Gillies & McCarthy, 1999) Also worthy of mentioning in this regard is the Children Act of 1989, which sets guidelines for courts to follow in coming up with orders that will impact on the child's well-being. Among these are the wishes of the child; his age, sex or background; the capability of the parents; the likely effect on him of a change in his circumstances. It also reiterates the principle that the welfare of the child is the primary consideration. Could Sarah and Samuel do anything to ensure Joshua's continued support of their university studies Samuel is a child of Joshua by blood, hence, he is entitled to support. With regard to Sarah, the law states that if the "child of the family" is a minor, his or her rights are guaranteed by Section 25(4) of the Matrimonial Causes Act of 1973. The aforementioned provision has reference to "a child of the family who is not a child of that party" and therefore, this squarely applies to Sarah, if not for the fact that she is nineteen years old and therefore, above the age of minority. By way of academic discussion, the factors that a Court should consider in granting a petition for support are as follows: a. to whether that party assumed any responsibility for the child's maintenance, and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility; b. to whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own; c. to the liability of any other person to maintain the child. Though stepparents and stepchildren are strangers before the law, there are some legal avenues through which stepparents may be required to provide support. (Hans, 2002). This provision could perhaps be one such legal avenue. The facts of the case at bar tend to suggest that conjugal assets from the marriage of Joshua and Naomi were used to support the education of Samuel and Sarah, even though both of them are children from the previous marriages of the couple. Had it not been for the fact that they were no longer minors, the court may have the authority to compel support. Of course, since Samuel is Joshua's actual child, the latter is still obligated to support the former 's college education. Is the prenuptial agreement enforceable Prenuptial agreements, though vilified by many, has a great potential to improve communication issues before marriage (Marston, 1997) and should be welcomed as a tool to preserve the rights of the parties. It must be noted however, that the parties concerned should not just be the spouses but also children born to the marriage. The prenuptial agreement should be modified in order to take into consideration the needs of the child born to Naomi and Joshua, the little Daniel. The tenor of the agreement is that "if this marriage failed they would each take back the value of the property they had bought into the marriage and any surplus would be divided equally." It clearly failed to consider the possibility that the marriage could bear children. Pursuant to the Matrimonial Clauses Act of 1973, the court may modify, or even annul, a prenuptial settlement if it is iniquitous to any individual, and in this case, it is iniquitous to Daniel. The court should at least modify the terms and provisions of the agreement so the Daniel's vested rights will not be rendered illusory. Even though Naomi is going to receive a windfall by virtue of the inheritance from her aging mother, and even though in the division of the conjugal property according to the original terms of the agreement she will be rich enough to support Daniel on her own, both father and mother are jointly responsible for the maintenance of the child. A parent should not be allowed to circumvent the law and renege on his responsibility through the simple expedient of invoking a prenuptial agreement that clearly is no longer applicable to present circumstances and conditions. REFERENCES The Children Act of 1989 The Matrimonial Causes Act of 1973 The Family Proceeding Rules 1991 Miller v. Miller (2006 UKHL 24) Binner, JM & Dnes, W. "Marriage, Divorce and Legal Change: New Evidence from England and Wales." Economic Inquiry. Vol. 39, No. 2. (2001): 298-306. Edwards, R., Gillies, V. and McCarthy, JR. "Biological parents and social families: legal discourses and everyday understandings of the position of step-parents." International Journal of Law, Policy and the Family. Volume 13, No. 1. (1999): 78-105. Hans, J. "Stepparenting After Divorce: Stepparents' Legal Position Regarding Custody, Access, and Support." Interdisciplinary Journal of Family Studies. Volume 51, Issue 4. (2002): Page 301. Maccoby, E. & Mnookin, R. "Dividing the Child: Social and Legal Dilemmas of Custody." Family Relations, Vol. 42, No. 3, Family Diversity (Jul., 1993): pp. 363-364 Marston, A. "Planning for Love: The Politics of Prenuptial Agreements." Stanford Law Review, Vol. 49, No. 4 (1997): pp. 887-916. Read More