The Appropriation of the Assets in a Family Law - Essay Example

Family Law Introduction: The principles that would apply to this Case Study regarding the appropriation of the assets of Jez, especially the house which his wife, Tracey is present occupying, can be found under Section 25 of the Matrimonial and Family Proceedings Act, 1984, in which the English Courts apply the provisions regarding ancillary relief to the parties, regarding the distribution of the assets owned by the husband, Jez,. Matrimonial and Family Proceedings Act, 1984 The English Courts normally take cognisance of the following matters, while deciding the division of the matrimonial assets. 1 The welfare of the children The earning capacity of the parties, past and future incomes The financial needs of the parties and their respective responsibilities and obligations. Standard of living enjoyed by the parties prior to the divorce proceedings Age of the husband and wife and the number of years in marriage. Any physical or mental disability in any of the parties Contribution made by each party to the overall development of the family unit What each of the parties would stand to lose in the event of the divorce settlement Case Laws: MacFarlane v. MacFarlane and Parlour v. Parlour The issue of the threshold of equality and its implication on maintenance and capital transfers to be effected to the parties in the event of legal separation in the UK and Wales is a decision which is within the jurisdictional bounds of the House of Lords. This aspect was emphasised in the Court of Appeals decision in the McFarlane v. McFarlane and also in the Parlour v. Parlour cases. The contention was that if the White v. White decisions “introduces the yardstick of equality for measuring a fair division of capital why should the same yardstick not be applied as the measure of division of income” 2 It is seen that both the cases of McFarlane and Parlour are on similar case patterns in that both have non-working wives, both have high income generating husbands who are in a position to provide more than the required Maintenance charges. Their wives maintain that it is more a threshold of principle of equality rather than reasonable requirements that should determine the quantum of maintenance and other benefits emanating from the divorce proceedings, their husbands contend that the maintenance was being made to allow the payments to be accumulated as capital over a period of time. In the case of McFarlane it is seen that the District Judge awarded a payment of £250,000 much higher than the wife’s estimated expenses of £128,000. However, upon Appeal, the Appellate Court reduced it to £180,000. 3 The facts of the case represented in the Parlour case alluded to the fact that although the present earnings of Mr Parlour was much higher than that of Mr McFarlane, it is seen that it would fall in the future when he would retire from Premier League Football. Bennett J, who heard the initial case, quantified the claims of the wife at £150,000 per year but he awarded £ 250,000 per year to Mrs Parlour. However, another judge, Thorpe LJ., opined that the earlier judge’s verdict of £250,000 per annum in the McFarlane and an award of £444,000 per annum in the Parlour case be made saying that “ the preferred mechanism by which the surplus is to be divided annually must be periodic payments (Para 66). 4 Seminal Case law North v. North It is seen in the recent case of North v. North (2007) EWCA CIV 760, in which the husband and wife divorced after the wife began to have an affair. As per the Court Order, the husband transferred Rentals and incomes to the estranged wife, but she chose to waste it on non-productive and injudicious investments after going to Australia. Next she claimed a change in the periodical payments and claimed a sum of £202,000 for capitalization and dismissal of periodical payments which was upheld by the district tribunal. The husband appealed and the Court of Appeals held that “the wife's failure to utilise her earning potential, her subsequent abandonment of the secure financial future provided for her by the husband and her lifestyle choices in Australia were matters which the husband could not be held responsible for in law.” 5 What each of the parties would stand to lose in the event of the divorce settlement? In this case Woody is determined as a natural child, she would be protected under the provisions of the Child Support Act 1991. Under Section 1 of the Child Support Act 1991, every parent of a benefiting child, is held responsible for the child’s maintenance. It further delineates that, in case the parent is not physically available, it shall be construed that he has met his obligations with reference to any beneficial children, if he makes regular maintenance payments as per the bylaws prescribed by this Act. Where there is a need for evaluation to be made for maintenance and periodic payments, it is the obligation of the absentee parent, in whose name such evaluation has been made, to release such payments. 6 If Woody cannot be proved to be a natural child of the couple, Jez and Tracey, it would have to seek protection for her as a child of the family protected under the Domestic Proceedings & Magistrates Court Act, 1978. As per the law where there is a child of the family under 18 years of age, the Court may not decline an application made by a party to the marriage under subsection 2, 6 or 7, nor may it be possible for it to make a final order in respect of it until the Court has decided, whether or not, it should exercise any of its prerogatives under the Children’s Act 1989 with relation to the concern of the child.” 7 In this connection Section 27 of the Matrimonial Causes Act 1973 relates to the provision of maintenance, in case, there is neglect on the part of responsible party to provide maintenance to the other. The Act elucidates that if either of the party “fails to provide reasonable maintenance including that for the minor children, and that the applicant, or any child of the family, “ is in immediate need for financial succor, the Court may make an interim order for maintenance that is paid, primarily for the payment of debts or expenses of the applicant or child of the family and the Court may also direct that the sums be paid by installments as specified by the Order and also the court may direct that such payments be secured, to the satiation of the Courts. 8 Under the law, it is seen that ‘unreasonable behavior’ could be one of the main reason for divorce proceedings, especially when the unreasonable behavior, by either spouses lead to ‘irretrievably breakdown’ of the institution of the marriage. It is often seen that in divorce proceedings, the settlement of property and financial ancillary relief proceedings entail lengthier procedures, which may often take many years for settlement, when compared to the actual divorce settlement. 9 Procedure after divorce: If the petitioner, Jez proves the fact, then it is up to the defendant, Tracey, to prove otherwise, or to substantiate, that the marriage has not irretrievably broken down. In its absence, the Court would grant the decree. It is only after such decree nisi (meaning unless proved otherwise, the decree would be made absolute after a period, unless reasons is given why it should not be) that decree absolute is passed after which the proceedings are final. The period between decree nisi and decree absolute, is usually 6 weeks. 10 In the event of the divorce being granted to Tracey and Jez, the parties would have to honour the court decision with respect to ancillary dues settlements and the terms of asset division. The Courts would have to consider the fact that Tracey is presently unemployed and needs, along with Woody and Ciara, to be maintained by her ex husband. In the decided case Dart v Dart, the court established that the terms of the settlement should be reasonable to the parties, taking into consideration all the aspects of the case. Since the couple were cohabiting before marriage, the children born during cohabitation are the sole responsibility of the mother, but subsequently, after their marriage, it is the joint responsibility of both the parents. Tracey’s contribution has not been much in the growth and development of the children since she had delegated most of the work to the nanny. . Her confession of adultery has opened the floodgates on the institutional bonding of this marriage, and has left Jez with no choice but to seek legal termination of the marriage. In the event of divorce, the matter of division of inherited assets among the parties is a subject matter of judicial discretion White v White: In the leading case of White v White, Martin and Pamela were married in September 1961, and were granted absolute divorce in May 1997. The application on the clean break basis decided that Mrs. White be given £980,000 vide a cash payment of £800,000 and the balance in share of property over a period of time .In all, she was to receive around 1/5 of the total assets. However, she wanted to start a farm of her own and therefore went for appeal to increase her share to £1.5 Million, thus hiking her share from 1/5 to 2/5 . The lower Court of Appeal upheld her contention, stating that Mr. White was entitled to more than partnership share on account of her contribution as wife and mother, and her role in joint farming. But her husband went into counter appeal, and the Court of Appeals, based on the circumstances of the case, rejected both the appeal and counter appeal of Mrs. White and Mr. White. This decision was also enforced in the leading case of Dart v. Dart (1996) 2 FLR 286 in which the judge assessed the reasonable requirements of the parties and on its basis, passed his judgment. 11 English Matrimonial and Family Proceedings Act 1984 The main focus of English Courts in divorce proceedings is to ensure that the respective parties enjoy the same status and lifestyle which they enjoyed during the currency of the marriage, and not in excess of it. It has been advocated that the benefits accruing to one party should not be at the distress of the other. In this case study, the matters pertaining to division of matrimonial assets could be decided among the parties themselves, or in the event of non-concurrence, it could be left upon the Court’s verdict. The prime issue would pertain to the provision of housing for Tracey and her children, and it would be left to the Court’s discretion to decide how immovable assets are to be apportioned to Tracey in the event of dissolution of marriage. According to Section 25 A (1) of the English Matrimonial and Family Proceedings Act 1984, the Courts have to establish whether it would be suitable for it to administer its powers for the release of lump sum by either of the party to end all financial obligations as determined by the Court Decree. In other words, whether the Courts would prefer a clean break by way of a lump sum payment or regular payments paid over a period of time. Again under Section 25 A (2) it is seen that the courts have to determine whether the payments would be for a fixed time, i.e. till such time that would allow the recipient, to adjust without difficulties, due to the stoppage of financial assistance from the estranged partner. With reference to Section 25A(3) it is seen the courts have to determine that, once a periodic payment obligation has been stated, there would be no continuing obligations and it needs to evoke a Court order to the effect that no further applications would be entertained by the Court pertaining to financial accommodations. 12 Parental responsibility Next, it is proposed to consider an important aspect regarding the parental responsibility of the two children, Ciara and Woody, as laid out in the Children’s Act 1989. In the case of unmarried couples who co-habitat, the parental responsibility vests with the mother, and subsequently, upon marriage the parental responsibility, vests with both father and mother. 13 Section 8 of the Act The law is laid down in Section 8 of the Act which states, interalia, that a specific issue orders” means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility of the child” 14After the divorce settlement order has been passed by the Court, it is necessary for both parties to abide by it, especially with regard to Jez who would have to make the capitalization amounts and maintenance to his wife for herself and the two children, Woody and Ciara. In the event that Jez went to appeal against the verdict, he would have to incur higher legal charges and justify his reasons for appeal, duly proving that Woody was not his biological child. However, it is a matter for the Courts to decide regarding the parent hood of the child, and till such time, it could be said that the legal guardianship of the child would be shared between the mother, Tracey and Jaz as father and natural guardian. Conclusion: Divorce proceedings are lengthy and time consuming legal battles, which involve heavy, and sometimes, exorbitant legal costs. As per the established practice, the legal costs for both the parties would have to be borne by the losing party, and in the event Jez lost his appeal, he would have to defray the legal costs besides the other Court orders of lump sum payments and regular maintenance costs. The ground for divorce as maintained by Jez, adultery, is in marriage settings a valid ground, and while a man could claim a divorce on this basis, a woman would not be able to avail of separation on this ground. A man’s adulterous nature, although sinful and worthy of punishment, may not affect his marital status. However, it is seen that a women’s adultery is condemned both as a sin and infringement of a man’s property rights and it is this fact that is taken up as the main consideration during the divorce proceedings on the grounds of adultery by a woman. However, in the present case study involving Jaz and his wife, Tracey, it is seen that the husband has used the pretext of his wife’s illicit relationships, to deny her fundamental rights as a partner in the sharing of matrimonial properties and assets.15 While Jez has valid reasons for the extinguishment of the alliance, he needs to ensure that Tracy does not need to endure suffering in her future, due to lack of resources, and this is forming an integral basis for the Court’s judgement in the Jez v.Tracy affair. Bibliography Child Support Act 1991: (c.48). (1991). Section 1: The duty to maintain the basic Principle. (Arrangement of sections). [Online]. Office of the Public Sector Information. P. 1-8. Last accessed 05 January 2008 at: http://www.opsi.gov.uk/acts/acts1991/ukpga_19910048_en_1 DIDUCK, Alison & KAGANAS, Felicity (2005). Family law, Gender and the State, Text, Cases and Materials. Equality: dividing the family assets: Does the yardsticks of Equality apply only to capital or does it apply to income as well? 2nd ed. P. 265. Last accessed 10 January 2008 at: http://books.google.com/books?id=pVVOvGN9enAC&pg=PA258&dq=Full+text+and+decision+of+Miller+divorce+case&sig=vLaD2zIX05QBr8bhpV87AHdkYVo#PPR5,M1 DIDUCK, Alison & KAGANAS, Felicity (2005). Family law, Gender and the State, Text, Cases and Materials. Equality: dividing the family assets: Does the yardsticks of Equality apply only to capital or does it apply to income as well? 2nd ed. P. 266. Last accessed 10 January 2008 at: http://books.google.com/books?id=pVVOvGN9enAC&pg=PA258&dq=Full+text+and+decision+of+Miller+divorce+case&sig=vLaD2zIX05QBr8bhpV87AHdkYVo#PPR5,M1 Divorce proceedings in England. [Online].Terry & Co: UK. 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Part II: Financial Relief in Matrimonial proceedings: Provisions relating to powers of the High Court and county courts. [Online]. The UK Statute Law Database. Last accessed 01 January 2008 at: http://www.statutelaw.gov.uk/content.aspx?LegType=all+primary&PageNumber=41&NavFrom=2&parentActiveTextDocId=771337&ActiveTextDocId=771337&filesize=278771 Part II: Order with respect to children in family proceedings. Office of Public Sector Information. Section 8: Residence, contact and other orders with respect to children. Last accessed 01 January 2008 at: http://www.england-legislation.hmso.gov.uk/acts/acts1989/ukpga_19890041_en_3 Part VIII: Financial Provisions and Property during Marriage. Definition of “Party to a marriage” and “child of the family” P.3. 33 Financial provisions in the family proceeding Courts: Last accessed 05 January 2008 at: http://www.oup.com/uk/orc/bin/0199264031/chap33.pdf. Selected family law terms. (2007).Oxford University Press. Last accessed 01 January 2008 at: http://www.oup.com/uk/orc/bin/qanda/books/01family/terms/ TAYLOR, Gordon Rattray (2004). Marriage in British Law and practice. Sex in history. The present state of English law (circa 1970). Last accessed 01 January 2008 at: http://www.tomrawlinson.com/Patriotic/Marriage.htm Top Five Family Law Cases of 2007. (2007). North v. North (2007) EWCA CIV 760. [Online]. Jordan’s family law. Last accessed 01 January 2008 at: http://www.familylaw.co.uk/artlDetail.aspx?subjID=1&artl_id=1557#artl_1557 Read More