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Matrimonial Causes Act - Essay following family supervision four.

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Introduction

Laura Jenkins Jesus College, part II law Essay following Family Supervision four The first point to note is that the divorce courts have very wide discretion about how property and assets are divided up upon divorce. Under section 25 of the Matrimonial Causes Act 1973 certain considerations are paramount, such as the welfare and housing arrangements of minor children. There then follows a list of factors that must be taken into account, although these may be disregarded by the court in the presence of other evidence: the court merely has a duty to consider these factors, rather than impose orders upon the basis of them. The principle laid down in White v White stated that, although there is no presumption of equality upon divorce, if the court intended to depart drastically from an equal splitting of assets they should have good reason to do so. Also under the authority of Lambert v Lambert, when assessing ancillary relief the court should not place greater weight upon the financial contributions of the breadwinner over that of the homemaker as a justification for an unequal division of assets. i) The first thing that A will want to consider is the possibility of obtaining a maintenance pending suit under section 22 of the MCA; this will compel L to make financial provision for A and the children until the outcome of the court proceedings is known. ...read more.

Middle

Taking into account the needs of certainly the youngest child, for immediate stability and a home, this would not seem unreasonable. Next, there is the issue of spousal support and/or a lump sum settlement. As L has already conceded his interest in the family home it would seem inequitable to make an immediate payment from L to A at this point, as this may reduce his ability to find a new home of his own etc. However, due to A's age and the fact that she still has a minor child A is likely to need some support to readjust, particularly as it is likely that she will stop work for L, with or without remuneration, upon her divorce. Thus, the court has the power to order periodic payments from L to A for either a fixed period or indefinitely. Due to A's age and possibility of her achieving gainful employment in the future the court would be more likely to order periodic payments for a period of, say, three years. This can be achieved under s. 23(1) of the MCA. Given L's lump sum and his likely earning power, �10,000 a year for three years does not seem unreasonable. ...read more.

Conclusion

However, if the order were by consent, the financial positions of both parties are much more likely to be taken into account, particularly as A in this case has greatly enhanced her position. However, in keeping with the "clean break" principle whereby both parties should, at the point of divorce be able to conduct their subsequent lives in the manner they choose and free from interference by the other party, courts are reluctant to get involved once an order has been made, save in exceptional circumstances. After one year has elapsed from the granting of a consent order, L may return to court in order to attempt to get the original orders changed. It is unlikely that he will be able to do anything about his financial responsibility for his older two children as they remain his children and thus his responsibility. Given the rise in value of the house and the arrival of a, potentially paying, D, it is however plausible that he will be able to cease spousal maintenance payments from the date of the second court hearing. The court has no jurisdiction to re-readjust property division or pension rights once the decree absolute has been granted, MCA s. 31(1), so L would not be able to change his original settlement in this respect. However, it remains L's best chance to get the order altered if it was originally embodied in a consent order. Laura Jenkins ...read more.

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