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 take into account. 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, standard of living, age, duration of marriage, any disabilities, contributions and conduct.
Several leading cases are referred to – White, Miller and McFarlane.
Baroness Hale’s quote is referred to in relation to the importance of addressing need – ‘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 both to define and to achieve. Giving half the present assets to the breadwinner achieves a very different outcome 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 being independent if possible in the circumstances
- Needs usually justifies 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 needs generated by the relationship should be met by the other party if resources permit
In the next part we will look at 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 and is a Resolution Accredited Specialist. For more information, please contact him on 0161 641 4555 or email anthony@odonnellsolicitors.co.uk
