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FAMILY LAW - Essay Example

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In considering how the court is likely to resolve ancillary matters, the relevant statutory provision is the Matrimonial Causes Act 1973 (MCA) and in particular, the section 25 criteria1. Moreover, the recent decisions in Miller v Miller and Mcfarlane v Mcfarlane2will be…
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Download file to see previous pages Under the MCA, a lump sum order can be made to enable the payee to comply with pre-existing liabilities and expenses already incurred such as the outstanding mortgage payments in the current scenario; or alternatively it could be used to enable a spouse to take training as Ann has indicated. In such cases, an order can only be made if Timothy has the appropriate capital5.
Section 25A requires courts to consider the desirability of promoting cessation of financial obligations between the parties. In ancillary relief applications, there is a mandatory judicial obligation to consider a clean break or impose a time limit on financial obligations. However, as highlighted in SRJ v DWJ,6there is no judicial presumption towards a clean break. It is further evident from the decision in Miller and Mcfarlane7, that the courts favour wives of wealthier spouses in divorce, which places Ann at an advantage8.
Nevertheless, the overriding sentiment of the MCA is to encourage spouses to become independent and the courts will follow the section 25 guidelines9. With regard to the judicial approach to Ann’s demands for maintenance, in Wachtel v Wachtel10, the courts adopted a one third formula as a starting point. Moreover, as a result of the decision in White v White11the House of Lords determined a benchmark approach of equal division in surplus asset cases12.
With regard to the property and maintenance, the house is jointly owned and Ann and Timothy’s children are adults and have moved away. Accordingly, the appropriate approach as highlighted in Piglowska v Piglowska13 is to consider the specific criteria in section 25(2) of the MCA, which creates no priority.
Section 25(2)(a) and (b) are relevant and therefore the present and future income and other financial resources of both parties, including any increase in capacity that is reasonable to expect a party to take ...Download file to see next pagesRead More
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