Family: Ancillary Relief

ABOLITION OF MAINTENANCE

-       The argument is that the existence of maintenance perpetuates the fact that women are dependent upon men.

-       The law tells wives that they will be entitled to financial support if their relationship ends, therefore women are willing to take lower-paid jobs and become dependent on their husbands.

-       If maintenance were abolished, it would encourage women to find adequately paid jobs.

-       O’Donovan has suggested that the abolition of maintenance can only fairly be accomplished when there is equality of division of labour during marriage, including financial equality; there is equal participation in wage-earning; there are wages geared to people as individuals and not as heads of families; there is treatment of people as individuals by the state in taxation and benefit provision.

ORDERS THAT THE COURT CAN MAKE

Income orders

Periodical payments order (PPO) under s.23 MCA 1973.

-       May be weekly, monthly or annually

-       Can be secured or unsecured (against property)

However, Thorpe LJ in AMS v Child Support Officer has said that secured PPOs ‘have been virtually relegated to the legal history books’.

-       Will cease on the death of either party – unless the order is secured, in which case it will continue after the payee’s death. It will also cease on the remarriage of the recipient as the new partner is deemed to be financially responsible for the recipient. Additionally, the court order may specify a specific date when payments are to end.

Property orders

There are three main types of property orders:

1) Lump sum orders

-       A lump sum order (LSO) requires a lump sum of money to be handed over by one spouse to the other.

-       May be made to a parent for the benefit of a child.

-       May be paid in instalments.

-       Often used when considering housing issues, assuming one party is going to stay in the matrimonial home.

2) Transfer of property orders

-       Orders one party to transfer a share in the matrimonial home to the other.

-       This order could also be used to transfer other property, such as a car or piece of furniture.

3) Power to order sale

-       Under s.24A MCA 1973 the court can order the sale of property, whether it’s owned outright by one of the parties or jointly by both parties.

-       The owner will usually be required to sell the item and then the proceeds are divided between the spouses by means of a lump sum order.

Clean break order

When considering which financial order to make, the court must consider whether to make a clean break order. If a clean break order is not made, the parties can potentially have further financial obligations placed upon them after divorce for the rest of their lives. I.e. if husband wins the lottery, the amount he is required to pay the wife may increase if there has not been a clean break. Similarly, if she won the lottery, the husband might ask that the payments stop.

-       A clean break order ends any continuing obligation between the spouses. However, it should be stressed that the clean break cannot end the possibility that a spouse may be liable for child support – it is only spousal support that can be cleanly broken.

-       A delayed clean break order is also possible, i.e. after 2 years of periodical payments

-       S.25A MCA 1973 provides the court with a duty to consider whether a clean break would be appropriate in all cases, but it will certainly not always be preferable.

Benefits of a clean break order: parties are free to pursue their own careers without worry that it will lead to a variation of the order; there may be emotional reasons i.e. feeling released from the marriage; if the recipient intends to remarry it will ensure she does not lose out on payment; it avoids future problems in the payment and collection of periodic payments. In Miller; McFarlane, Baroness Hale said ‘periodical payments are a continuing source of stress for both parties’.

-       The main advantage is that the court ties its hands and will not reopen the court order.

A clean break order is appropriate where

            1) Continuing support offers to benefit to the wife

            2) Short childless marriages are involved

            3) Very wealthy people are involved

            4) Both spouses have well-established careers

            5) There is antagonism between the parties

A clean break order is inappropriate where

            1) There are still young children

            2) There is too much uncertainty over the recipient’s financial future

            3) Where there is a lengthy marriage

            4) The courts want to achieve fairness

STATUTORY FACTORS TO BE TAKEN INTO ACCOUNT

-       Listed in s.25 MCA 1973

-       In Piglowska v Piglowska [1999] the HL accepted that different judges may reach different conclusions as to what the most appropriate order may be in a particular case.

-       In White v White Lord Nicholls suggested that fairness is the overriding purpose of the Act. This is the judges’ objective view of fairness.

-       However Miller; McFarlane said ‘fairness is an illusive concept’

1) The welfare of children – the court’s first consideration must be as to the welfare of any child who has not attained the age of 18. Although Suter v Suter and Jones clarified that although it is the first consideration, it is not the overriding consideration.

2) Financial resources – in reality the courts are mostly dealing with the debts rather than the assets of the parties. All assets will be considered, even those which the parties owned before the marriage.

NB: the financial resources of a third party (i.e. a new boyfriend) cannot be taken into account. However, the court can consider that a new spouse may be in a position to contribute to the household expenses, thereby reducing her needs.

NB: ‘other resources’ considered may include income from discretionary trusts, personal injury damages, or even inheritance received post-divorce.

B v B –held unfair to divide assets equally on divorce after a 12 year marriage where all the capital had been provided by the wife from an inheritance.

C v C – a husband was due to acquire a quarter share in a substantial trust fund on the death of a 74yr old widow. The court held that given that the woman was likely to die within the next 15 years and that the husband was definitely likely to be entitled, it was an asset that could be taken into account – had the widow been much younger, it’s unlikely that the court would have considered it.

NB: the court will consider both present income and any extra earnings that could be gained by working overtime. If a person is unemployed then he or she may be expected to find work. However, in A v A the court held it was not reasonable to expect a woman of 45 to seek full-time employment, although had she been much younger and childless the court may have reacted differently.

3) The needs, obligations and responsibilities of the parties – needs not be restricted to those that arise directly from the marriage. The concept ‘needs’ is inevitably subjective. The courts have interpreted ‘needs’ loosely. The needs of a rich couple are not the same as the needs of a poor couple. In F v F the court held that the wife needed 3 houses! Reasonable requirements are not limited to essentials.

4) The standard of living enjoyed by the family before marriage breakdown – this factor tends to be relevant to rich couples in particular. In S v S the court heard that because the couple had been heavily involved in horses during the marriage, the wife should be entitled to a sum which allowed her to continue her love of horses.

5) The age of each party to the marriage and the duration of the marriage – the shorter the marriage, the less likely the court will make a substantial award.

In Attar v Attar the couple had been married for 6 months, so it was suggested that the sum must simply reflect the amount required to put the parties back in the position they had been in before the marriage.

However, in C v C despite only a nine month marriage, a child with significant health issues had been born into it; therefore both a lump sum and periodical payments were ordered.

In Miller v Miller a wife was awarded £5million after a 3 year marriage, because the husband had made a significant amount of money during that time.

Alternatively in Krystman v Krystman the couple had been married for 26 years but only lived together for two weeks, so no order was made.

6) Any physical or mental disability of either of the parties to the marriage – the most notable case is C v C in which a husband was badly disabled and so was entitled to £5million, even though the wife was therefore left on social security benefits. The husband’s disabilities meant he required constant care and complex equipment, thus he was entitled to all the assets.

7) Contributions to the welfare of the family – must first consider the position of the spouse who is not earning, but has been working as the homemaker and child carer. White v White emphasised that the division of labour must be considered but it was not important who earned the money.

8) Conduct – at one time conduct was considered to be very important i.e. an adulterous wife could expect a low award. However it is now rare for conduct to be taken into account, unless it is such that the court would be inequitable to disregard it. In K v K the woman helped her depressed husband commit suicide as she wanted to acquire his estate.