Family Law and Practice - Essay Example

FAMILY LAW Family law is a set of laws, procedure and rules which govern family-related matters and agencies, ities and groups involved in the outcome of private disputes as well as social decisions involving family law (Luppino & Miller 2011 p. 216). With regards to a divorce, the law is generally divided into two parts. The first section is concerned with the grounds for divorce. The second section on the other hand entails the guidelines on how the courts deal with property and financial issues. A divorce causes severance of marriage ties as well as brings changes in the property relations and the division of marital assets between the spouses. Section 25 of the Matrimonial Causes Act 1973 governs the distribution of properties between spouses. The act stipulates the grounds on which a divorce petition may be presented to the court. In this regards, either party to a marriage may present a petition for divorce to the court on the grounds that the marriage has broken irretrievably. It further delineates the grounds on which the court shall hold a marriage to have broken. In the case Alan and Lisa Brown, Lisa is eligible to present a divorce petition on the grounds that her husband Alan has committed adultery and she finds it intolerable to live with him. The act of adultery by Alan is evidenced in the affair he has with Susie, a young police officer, with whom he has moved to stay with in his mother’s flat. The manner in which their financial assets will be distributed is determined by the courts whilst applying relevant legislations and common law precedents know as the ancillary relief. In the Matrimonial Cause Act 1973, the law that is relevant to this application is found in Section 25. It specifies the circumstances that the court must consider when deciding upon the manner in which its powers will be exercised during the application of ancillary relief in any case (Luppino & Miller 2011, p. 221-224). The courts therefore have the mandate of considering all the aspects surrounding the divorce including the welfare of children who are under the age of eighteen years, the income of the spouses, the earning capacity, property owned as well as other financial resources which each of the parties to the marriage has or is likely to have in the future. It is therefore important for the parties to the marriage to fully and frankly disclose their resources. For instance, in Alan and Lisa’s case, the information to be considered include: their £650,000 jointly owned home, Alan’s annual earning of £85,000, Alan’s Pension awaiting him the following year, the earning he will make as he continues working in consultancy security firm on part time after his retires, joint savings of £150,000, Alan’s personal investments and savings of £300,000, Alan’s mother’s flat worth £250,000 plus the estate he is intended to inherit from his mother worth £2 Million. In the House of Lords joint cases involving MacFarlane v MacFarlane: Miller v Miller (2006) UKHL 24, it was held that the Matrimonial Causes Act 1973 is only intended to provide limited guidance regarding how courts are to deal with application of ancillary relief (Areen 2006 p. 290). It was however stated that, the underlying principle to enhance fairness between the parties prevails. This implicates that every marriage gives rise to relationships of interdependence. This argument is justified in the sense that in an event of a marriage coming to an end, fairness implies the division of the parties’ assets so as to make provisions for their housing and financial need (Areen 2006 p. 298-301). This decision is done basing on the parties’ ages, their future incomes and earning capacity, the standards of living of the family as well as physical or mental disability if any. At this juncture, it is necessary to examine each of these factors with regard to Alan and Lisa’s case. With specific reference to Section 25(a) of the Matrimonial Causes Act of 1973, the court has to consider 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 (Luppino & Miller 2011 p. 247). Decisions regarding awards of maintenance as well as transfer of property are contingent on these grounds. However, it is important for such decisions to be supported by palpable evidence. Regarding the estate that Alan is yet to inherit as documented in her mother’s will, the court may not take it into account. This is due to the fact that people usually change their wills and therefore, inheritances are subject to speculations prior to the owner’s death. For instance in the case of Michael v Michael (1986) 2 FLR 389, CA, the husband appealed unsuccessfully against the decision by the judge to take into account the property which the wife expected to inherit under her mother’s will (Areen 2006 p. 305). Consequently, the Court of Appeal held that the expectations of this kind of principle are relevant, but in this case, the expectation was not certain, both in its timing and in its fact to prompt the provision ordered. Basing on this ground, it is rather clear that the £250,000 flat belonging to Alan’s mother, plus the estate he is intended to inherit from his mother worth £2 Million would not be taken into account for sharing. With regard to Section 25(b), the court has to consider the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseen future. Each of the two parties in a marriage will always have a need for accommodation and maintenance. Alan and Lisa’s case seems to be rather complicated in the quest to balance the competing needs of the husband and the wife in ancillary relief proceedings. This is attributable to the fact that Alan has re-married Susie and now has a new life. This indicates that he definitely has obligations towards his new wife. Balancing these needs against those of Lisa is never a walk in the park, thus the court s obliged to enhance fairness in the balancing of their needs With respect to section 25(d), the court has to consider the age of each of the party to the marriage and the duration of the marriage (Luppino & Miller 2011, p. 261). This is a prerequisite in considering the needs for the foreseeable future. Alan and Lisa had been married for a longer duration. In this regard, the court is unlikely to divide the property basing on strict property rights. The court will consider where each party has to live, the provisions each of them has for retirement among other things. Basing on his age, and the number of years left for him to work, it is unlikely that Alan could get another mortgage. This way, the court has to consider his future accommodation as much as that of Lisa in its consideration for the matrimonial home. With respect to the matrimonial home, the court could consider various options. First, the court could decide that the home be sold with immediate effect and the proceeds be divided between the two parties in proportions as it thinks is right. This decision would prompt each of the parties to find new accommodations. The second option involves an order by the court to either one of the parties to transfer his or her interest in the home to the other, with or even without any compensatory cash payment by the transferee. In other instances, the court may order the transfer subject to legal charge aimed at favouring the transferee, convertible into liquid cash when the home is sold later on. The third option is what is referred to as the Mesher order. This is an order by a court, which creates a trust for sale of the matrimonial home in favour of both parties, but the sale is postponed until a specified event occurs (Satsky 2001 p. 14-15). In the case of R v R (1994) 2 FLR 1044, Brown P, the husband moved out to set up a new home with another woman whereas the wife opted to remain in the matrimonial home (Areen 2006, p. 310-311). When they divorced, the husband argued that the house be sold and the proceeds divided since the house was much bigger than the wife needed. The judge dismissed the wife’s wish of remaining in the house on the grounds that they were unreasonable, thereby refusing to make an order for sale. He therefore ordered the house be transferred to her along with a portion of the husband’s total assets (Areen 2006, p. 311). In this case, an order for sale and sharing of the proceeds may have been the most suitable option. However, considering that Alan already has another house (which belongs to his mother and is yet to inherit as per his mother’s will), the court would be fair enough to consider the second option basing on Lisa’s medical grounds. Also, Lisa is in her 50’s and has not been working. This implicates that she is not expected to return to work in the near future. The situation is perpetuated by her health condition. The court is therefore obliged to consider that she might face hurdles in becoming financially independent. This way, a clean bleak may not be appropriate. Maintenance by Alan, at least for some period of time might be quite commendable. Section 25(e) covers any physical or mental disability of either parties to the marriage (Satsky 2001, p.31). It is apparent that mental and physical disability has substantial effects on a person’s earning capacity or foreseeable needs in the future. Lisa’s physical condition falls in this category. She is suffering from depression and agoraphobia. In determining how the matrimonial house is to be divided, the court has to consider Lisa’s health condition. For instance, she claims that the matrimonial home is the only place she feels safe. Basing on Lisa’s medical certification, the court could give an order to have Alan to transfer his interest in the home to his new home with or without any compensatory cash payment. Section 25(f) considers the contributions made by each of the parties to the welfare of the family including any contribution made by looking after the home or caring for the family (Luppino & Miller 2011, p. 277-279). This is a vital subsection in the ancillary relief proceedings. Lisa as a wife, contributed much by looking after the home, raising the children (who are now adults), doing house chores among many other duties. This has to be considered during the division of matrimonial property. When the children were young, Lisa worked part time. Besides these contributions, Lisa also contributed to settling of the £650,000 mortgage of their home. The court should therefore consider the fact that the home is jointly owned. The ultimate effect of this subsection is to ensure that the wife’s contribution in the welfare of the family by performing this domestic task is considered and counts just as much as the husband’s mortgage contribution in the event of a house. This principle also holds in other family assets. In the case of Vicary v Vicary (1992) 2 FLR 271, CA, the husband and the wife had five children (Areen 2006 p. 233). Two daughters were from a previous marriage. The wife did not contribute to the husband’s business. She was however an excellent wife and an exemplary mother. The marriage broke owing to the husband’s adultery. The wife left the matrimonial home with her youngest child. The husband bought for them a house. The judge also set aside a consent order for further financial provision because the husband had failed to reveal all his assets. The wife’s contribution to the home bolstered the husband’s prosperity and accumulation of wealth. She was therefore elegible to share the property with her husband. The husband’s appeal was dismissed. Basing on the judge’s ruling in this case, it is evident that Lisa is eligible for a share of the matrimonial home alongside other accompanying benefits. The last to be discussed in this paper is Section 25(g) of the Matrimonial Clause Act. This subsection considers the value of either party to the marriage, of any benefit which the party stands to lose the chance of acquiring it in case of a divorce (Luppino & Miller 2011, P. 312). Here, the value of any pension fund is very important in an ancillary relief application. The subsection also expressly applies to any other asset apart from pension, which the party stands to lose as a result of the divorce. In the case of Lisa and Alan, the two have been married for many years. Thus, this subsection has much implication to them. Despite having been working as a secretary for some years, Lisa did not make any contribution for her pension. On the contrary, Alan has a very generous pension plan. In the ordinary course of events, the pension would greatly benefit the family after his retirement. On this basis, Lisa is liable for a portion of the pension which Alan will start receiving next year. This is attributed to the fact that the pension fund was built up from Alan’s income during the course of their marriage. This implies that, to some extent, Lisa has paid for the pension indirectly because some funds which could have been used for other things during their marriage were diverted towards Alan’s pension plan. In her current situation and age, it is impossible for Lisa to make pension arrangements of her own. This implicates that she has to be compensated for the loss of this future benefit. The same will also apply to the benefits which would accrue to her due to Alan’s part-time work in a security firm after his retire. This way, Lisa is eligible to a portion of the earnings that will emanate from this job. References Areen J. C, 2006, Cases and materials on family law (5th ed., pp. 286-325), Foundation Press, New York. Luppino J.F, & Miller, J. F, 2011, Family law and practice (3th ed., pp. 211-256), Prentice Hall, New Jersey. Satsky, W. P, 2001, Family law: West legal studies (5th ed., pp. 11-50), West Legal Studies, Cambridge. Read More