The Family Justice Council published the Guidance on Financial Needs on Divorce in June 2016, but is it really going to help?
This is my second blog in relation to the Guidance.
The Law
The Report goes on to deal with the law. The Matrimonial Causes Act 1973 is the statute – s25 in particular deals with the factors the courts consider. All the circumstances are considered, with the first consideration being the welfare of any child of the family under the age of 18. The court will then look at the set factors such as income, earning capacity, financial resources, needs, obligations, responsibilities, the standard of living, age, duration of the marriage, any disabilities, contributions and conduct.
Several leading cases are referred to – White, Miller and McFarlane.
Baroness Hale’s quote refers to the importance of addressing needs – ‘Thus were the principles of fairness and non-discrimination and the ‘yardstick of equality established [in White]. But the House was careful to point out (see p 605f) that the yardstick of equality did not inevitably mean equality of result. It was a standard against which the outcome of the section 25 exercise was to be checked. In any event, except in those cases where the present assets can be divided, and each can live independently at roughly the same standard of living, equality of outcome is difficult to define and achieve. Giving half the present assets to the breadwinner is very different from giving half the assets to the homemaker with children.
Overall Objective
The focus is to achieve fairness when dividing matrimonial finances, which may mean:
- Meeting needs to enable a transition to be independent, if possible, in the circumstances
- Needs usually justify finances being divided unequally.
The justification for meeting needs generated by the relationship through financial remedies is highlighted as follows:
- Marriage typically creates a relationship where each depends on the other
- The presence of children creates dependency
- Potentially long-term dependence can be created if one party discharges family obligations at the expense of employment potential.
- It is generally right and fair that the other party should meet needs generated by the relationship if resources permit
In the next part, we will examine what Needs are and how they can be met. This is a complex area of law, with each case decided on its own facts.
Anthony Jones is Head of Family Law and is a Resolution Accredited Specialist. For more information, please contact him on 0161 641 4555 or email anthony@odonnellsolicitors.co.uk
