ENGLAND & WALES Law and Practice Contributed by: Alex Carruthers, Oliver Heeks and Sian Brooks, Hughes Fowler Carruthers
are contained in Section 25(2) of the MCA 1973 and are: • the income, earning capacity, property and other financial resources that each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity – this includes any increase in such capacity that it would, in the opinion of the court, be reasonable to expect a party to the marriage to take steps to acquire; • the financial needs, obligations and responsi - bilities that each of the parties to the marriage has or is likely to have in the foreseeable future; • the standard of living enjoyed by the family before the breakdown of the marriage; • the age of each party to the marriage and the duration of the marriage; • any physical or mental disability of either of the parties to the marriage; • the contributions that each of the parties has made or is likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family; and • 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. The court will consider these factors in concert with case law from the Family Court. Although the court has an extremely broad discretion, there are guiding principles from the case law. The central ones are set out as follows. • The court’s objective in applying Part II of the MCA 1973 is to achieve a fair outcome. To this end, there shall be no discrimination between the breadwinner and homemaker (White (2000) UKHL 54).
• There is no hierarchy in the Section 25 fac - tors – which of them will carry most weight depends upon the facts of the particular case (Piglowska (1999) 3 All ER 632). • In addition to the welfare of minor children, the court is guided by the three “strands” of needs, sharing and compensation (Miller; McFarlane (2006) UKHL 24). Financial Orders The court can make a number of orders to regu - late or reallocate assets on divorce. These are contained in the MCA 1973. These include: • maintenance pending suit (Section 22); • orders for payment in respect of legal ser - vices (Section 22ZA); • periodical payments and/or lump sum for a party to the marriage and the children (Sec - tion 23); • property adjustment orders (Section 24); and • various pension orders, including pension sharing orders (Section 24B). The court also has the power to vary a trust if the court is satisfied that it is a resource of the marriage. The Family Court can vary a trust in a divorce under Section 24(1)(c) of the MCA 1973 if it can be demonstrated that the trust is a “nup - tial settlement”. When using these powers, the court takes into account the above-mentioned issues and, in particular, the parties’ need and the amount of matrimonial assets to be shared between the parties. Identification and Disclosure of Assets There is an ongoing duty to provide full and frank financial disclosure in financial proceedings. This duty includes all material facts, documents and other information relevant to the issues. As the duty of disclosure is ongoing, the court must be
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