A Divorce Proceeding - Case Study Example

Like every set of facts which compose a divorce proceeding, the facts present in the marriage and divorce of James and Susan must be taken into account in determining how their divorce is to be carried out and in deciding the crucial issues which pop up in every divorce proceeding. In this particular scenario, and unlike many divorce proceedings, the question of child custody does not come into play. The facts presented show no contention between the two parties in regards to whose custody the two common children shall be awarded upon the dissolution of their marriage. From the facts presented, it may be safe to assume that custody of the two common children shall remain with Susan. There is nothing in the facts which belie any intention on James' part to contest the award of such custody and even granting that he attempts to contest it, the demands of his career and Susan's track record as the primary caretaker of the two children would make such contention largely untenable. As such, we may thus safely assume that custody of the children would in fact be awarded to Susan upon their divorce. Susan's expected custody of the two common children is an important factor that will influence the resolution of the more controversial issues in their case. The issues that must be resolved upon the dissolution of James' and Susan's marriage revolve primarily upon two areas: support and property allocation. In regards to the first area of contention, we further subdivide it into two sections: support for their common children and support for the other spouse. In regards to the question of child support, James may be ordered to provide financial support for the two common children in accordance with Section 23 of the Marital Causes Act of 1973, which allows the court to order a party to the marriage to provide financial support to the benefit of a child of the family. As the non-residential parent, James may be made to provide for financial support of the common children equivalent to roughly 20% of his income, pursuant to the Child Support, Pensions and Security Act of 2000. The disparity between the financial resources of James and Susan is apparent from the facts at bar. James currently earns 80.000 per annum whereas Susan's voluntary work in the local charity cannot be deemed to be sufficient to meet her financial needs. As such, it is the duty of the courts to ensure that Susan receives financial support from James so as to meet her own financial needs. Pursuant to 2.53 of The Family Proceeding Rules of 1991, an order for maintenance pending suit may be imposed upon James to compel him to provide financial support while the divorce proceedings are ongoing so as to meet Susan's immediate financial needs. The amount of financial support to be provided for Susan shall be determined by several factors. The amount must not be based solely on her financial needs, but rather on what may be perceived as reasonable and fair, taking into consideration the lifestyle which characterized their marriage as well as other considerations directed towards making the two parties as equal to each other as possible, financially and otherwise. James, as the financially advantaged party may thus be ordered to provided specific payments of financial support to Susan, to be provided in regular periods, and subject to Susan's remarriage, change in employment status, and other conditions that the court may deem significant in determining whether such maintenance is still necessary. As has been held in White v White (2000 UKHL 54), the overall purpose of the standards set in the Marital Causes Act of 1973 is to promote "fairness" between the two parties involved. This purpose places upon the court the duty to ensure that neither party is left disadvantaged by the dissolution of their marriage, a scenario that is bound to occur should the non-earning spouse be left to his or her own defenses without recourse to the protection of the court. The goal of "fairness" is further elaborated in the recent case of Miller v Miller (2006 UKHL 24): "..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.." This concept of fairness and equality between the two parties shapes not only the provision of financial support for the non-earning spouse but also the redistribution of their matrimonial property. In the same way that the benchmarks of "fairness" and "equality" dictate the provision of financial support for Susan, the assets and properties of their matrimonial partnership should also be divided between them with neither party being provided any undue advantage. Of particular interest in the matter of property dissolution is the question revolving around the couple's matrimonial house. In many foreign jurisdictions, legal distinction is made in regards to inherited property and purchased property. In our jurisdiction, however, such distinction does not factor heavily when it comes to the determination of how matrimonial property is to be dissolved. Although James inherited the house from his own family, the principles outlined in MCA 1973, specifically that of s.25 (1) which places primary consideration on the welfare of the minor children, weighs heavily in the determination of what will happen to the said house. It has been held in many instances that the matrimonial house shall be awarded to the party where majority of the minor children will be staying with. In Clutton v Clutton (1991 1 FLR 242), the controversy between inherited property and the welfare of the minor children was laid to rest with the court declaring that the interests of the children require that they remain in the matrimonial home. Such seems to be the same as the case at bar. Upon dissolution of the marriage, therefore, Susan and the common children shall remain in the said matrimonial home, although partial ownership of the said house shall remain to be reserved for James. REFERENCES The Family Proceeding Rules 1991 The Matrimonial Causes Act of 1973 Clutton v Clutton (1991 1 FLR 242) Miller v Miller (2006 UKHL 24) White v White (2000 UKHL 54) Bromleys Family Law by Nigel Lowe and Gillian Douglas, 10th ed. Cretneys Family Law by Rebecca Probert, 5th ed. Read More