Family: L5 – Finance and Property on Divorce (part 2)
s25(2) MCA List of factors (cont’d)
(c) standard of living enjoyed during marriage:
- In practice often not possible to maintain the standard enjoyed during marriage –
especially when only one party works, not possible.
- Relevant for rich couples - Leadbeater v Leadbeater [1985] 1 FLR 789
- Actual standard enjoyed, not the one spouses could have afforded to have:
o A v A (Financial Provision) [1998] 2 FLR 180: Spouses lived in frugality
despite being rich.
(d) age of parties and duration of marriage:
- The shorter the marriage, the less substantial the award
o McCartney v Mills McCartney [2008] EWHC 401 (Fam): After a short
marriage to a very wealthy spouse, a party cannot expect to live at the same
rate as during the marriage.
- Under 5 years, it will usually be considered a short marriage.
- Short, childless marriages:
o The order must return parties to the financial position before marriage
o Attar v Attar [1985] FLR 649: husband was wealthy millionaire from Saudi
and met his wife on plane. She was air hostess. She quit her job and they
got married. It only lasted a few weeks. Awarded her 2 year’s worth of
wages in order to return her to her financial position before the marriage.
- Short marriages:
o Spouses may keep non-matrimonial assets – EG: property acquired before
marriage, inheritance, gifts
o ***Miller v Miller [2006] 2 FCR 213
- Long marriages?
o Courts are less inclined to look at what is marital and non-marital assets
o S v S [2007] EWHC 1975 (Fam): married 20 years
o In a long marriage to which both parties contributed, no reason to depart
from equality.
o But:
> Jones v Jones [2011] EWCA Civ 41: whether or not the needs of the
party require that non-marital assets be part of the pool of
redistribution.
> Non-marital assets excluded from redistribution unless parties’ needs
cannot be met otherwise
> K v L [2011] EWCA Civ 550 – the court confirmed that this applies to
long marriages
- Large sums awarded where significant increase in wealth during marriage,
regardless of duration - Miller v Miller [2006] 2 FCR 213
- Length is relevant if a party’s earning capacity has been seriously affected
o Long period devoted to home-making and rearing children
o ***McFarlane v McFarlane [2006] UKHL 24: at the start of the marriage
both parties had good jobs – W was a solicitor and the H was an
accountant. They had 3 children. Before the birth of the second child, they
agreed that the W would stop working to look after the children. They were
married for 10 years. As well as distribution of assets, the W was given a
, continuous payment order so she would get part of the future high earnings
of the H.
o Redressing any significant prospective economic disparity between the
parties arising from the way they conducted their marriage
- Emphasis on length of the actual relationship rather than of the legal
relationship.
o Krystman v Krystman [1973] 3 All ER 247: married 26 years but only
lived together for 2 weeks.
- The period of pre-marital cohabitation may count towards duration
o GW v RW [2003] 2 FCR 289: the court found that their relationship moved
seamlessly from cohabitation to marriage – lived together for 18 months +
12 years married.
o Co v Co [2004] EWHC 287 (Fam): Cohabited for 8 years + married for 4
years
> Pre-marital cohabitation taken in consideration, but as relevant
circumstance rather than under the ‘duration’ heading
- Property acquired during pre-marital cohabitation/ engagement may be treated
as matrimonial property - Miller v Miller [2006] 2 FCR 213
o Retrospective imposition of responsibility when they didn’t commit to
anything?
(e) physical or mental disability:
- Could be under the needs heading – EG: disabilities require more needs
- Physical or mental disability can be analysed under the ‘needs’ heading
- C v C (Financial Provision: Personal Damages) [1995] 2 FLR 171: Husband had
severe disabilities requiring expensive equipment and care. H was afforded all
available assets.
- Seaton [1986] 3 CL 380: H suffered a stroke after the separation but before the
divorce. Wife had borne the financial burden of the marriage – H could keep a
job, she supported them both. Wrong under the circumstances to impose a
continuing obligation of support – H was not given an award to be supported by
the wife.
(f) contributions to welfare of family:
- “The contributions which each of the parties has made or is likely to make to the
welfare of the family, including any contribution by looking after the home or
caring for the family”
- White v White [2000] 2 FLR 981: established the courts should not discriminate
in favour of the money earner and against the home-maker
- Whatever the division of labour chosen by husband and wife, they each
contributed equally in their respective spheres
- ‘Special contribution’?
o Cowan [2001] 2 FLR 192: Husband successfully argued that equal division
would not have been fair, given his special contribution to their wealth
o H-J v H-J (Financial Provision: Equality) [2002] 1 FLR 415: No speciality
of husband’s contribution
> Fairness dictates that parties should leave marriage on broad financial
equality
o Lambert v Lambert [2002] EWCA Civ 1685 - The breadwinner’s
contribution does not weigh heavier than the homemaker’s
> Acknowledgment of special contributions only in exceptional
circumstances
s25(2) MCA List of factors (cont’d)
(c) standard of living enjoyed during marriage:
- In practice often not possible to maintain the standard enjoyed during marriage –
especially when only one party works, not possible.
- Relevant for rich couples - Leadbeater v Leadbeater [1985] 1 FLR 789
- Actual standard enjoyed, not the one spouses could have afforded to have:
o A v A (Financial Provision) [1998] 2 FLR 180: Spouses lived in frugality
despite being rich.
(d) age of parties and duration of marriage:
- The shorter the marriage, the less substantial the award
o McCartney v Mills McCartney [2008] EWHC 401 (Fam): After a short
marriage to a very wealthy spouse, a party cannot expect to live at the same
rate as during the marriage.
- Under 5 years, it will usually be considered a short marriage.
- Short, childless marriages:
o The order must return parties to the financial position before marriage
o Attar v Attar [1985] FLR 649: husband was wealthy millionaire from Saudi
and met his wife on plane. She was air hostess. She quit her job and they
got married. It only lasted a few weeks. Awarded her 2 year’s worth of
wages in order to return her to her financial position before the marriage.
- Short marriages:
o Spouses may keep non-matrimonial assets – EG: property acquired before
marriage, inheritance, gifts
o ***Miller v Miller [2006] 2 FCR 213
- Long marriages?
o Courts are less inclined to look at what is marital and non-marital assets
o S v S [2007] EWHC 1975 (Fam): married 20 years
o In a long marriage to which both parties contributed, no reason to depart
from equality.
o But:
> Jones v Jones [2011] EWCA Civ 41: whether or not the needs of the
party require that non-marital assets be part of the pool of
redistribution.
> Non-marital assets excluded from redistribution unless parties’ needs
cannot be met otherwise
> K v L [2011] EWCA Civ 550 – the court confirmed that this applies to
long marriages
- Large sums awarded where significant increase in wealth during marriage,
regardless of duration - Miller v Miller [2006] 2 FCR 213
- Length is relevant if a party’s earning capacity has been seriously affected
o Long period devoted to home-making and rearing children
o ***McFarlane v McFarlane [2006] UKHL 24: at the start of the marriage
both parties had good jobs – W was a solicitor and the H was an
accountant. They had 3 children. Before the birth of the second child, they
agreed that the W would stop working to look after the children. They were
married for 10 years. As well as distribution of assets, the W was given a
, continuous payment order so she would get part of the future high earnings
of the H.
o Redressing any significant prospective economic disparity between the
parties arising from the way they conducted their marriage
- Emphasis on length of the actual relationship rather than of the legal
relationship.
o Krystman v Krystman [1973] 3 All ER 247: married 26 years but only
lived together for 2 weeks.
- The period of pre-marital cohabitation may count towards duration
o GW v RW [2003] 2 FCR 289: the court found that their relationship moved
seamlessly from cohabitation to marriage – lived together for 18 months +
12 years married.
o Co v Co [2004] EWHC 287 (Fam): Cohabited for 8 years + married for 4
years
> Pre-marital cohabitation taken in consideration, but as relevant
circumstance rather than under the ‘duration’ heading
- Property acquired during pre-marital cohabitation/ engagement may be treated
as matrimonial property - Miller v Miller [2006] 2 FCR 213
o Retrospective imposition of responsibility when they didn’t commit to
anything?
(e) physical or mental disability:
- Could be under the needs heading – EG: disabilities require more needs
- Physical or mental disability can be analysed under the ‘needs’ heading
- C v C (Financial Provision: Personal Damages) [1995] 2 FLR 171: Husband had
severe disabilities requiring expensive equipment and care. H was afforded all
available assets.
- Seaton [1986] 3 CL 380: H suffered a stroke after the separation but before the
divorce. Wife had borne the financial burden of the marriage – H could keep a
job, she supported them both. Wrong under the circumstances to impose a
continuing obligation of support – H was not given an award to be supported by
the wife.
(f) contributions to welfare of family:
- “The contributions which each of the parties has made or is likely to make to the
welfare of the family, including any contribution by looking after the home or
caring for the family”
- White v White [2000] 2 FLR 981: established the courts should not discriminate
in favour of the money earner and against the home-maker
- Whatever the division of labour chosen by husband and wife, they each
contributed equally in their respective spheres
- ‘Special contribution’?
o Cowan [2001] 2 FLR 192: Husband successfully argued that equal division
would not have been fair, given his special contribution to their wealth
o H-J v H-J (Financial Provision: Equality) [2002] 1 FLR 415: No speciality
of husband’s contribution
> Fairness dictates that parties should leave marriage on broad financial
equality
o Lambert v Lambert [2002] EWCA Civ 1685 - The breadwinner’s
contribution does not weigh heavier than the homemaker’s
> Acknowledgment of special contributions only in exceptional
circumstances
