Compensation
Lord Nicholls said that compensation is aimed at redressing any significant prospective disparity between the parties arising from the way they conducted their marriage. Baroness Hale described this as compensation for relationship-generated disadvantage, which goes beyond need. McFarlane [2006][59] which suggested that sometimes equal division wouldn’t have produce fairness[60]. VB v JP [2008][61]Sir Mark Potter suggested that compensation was just one of the strands of fairness and it wouldn’t necessarily be appropriate to try to calculate a precise figure as to the loss of earnings caused by the marriage. In a big money case he suggested that normally an equal division of the assets would compensate the wife for her lost career prospects although it was always a question of what would be fair[62]
When balancing the 3 principles, a fair result, and it is subjectively depend on judges what is consider as ‘fair’
Pre-nuptial agreement
Fact shows that there has been an agreement between Raj and Sakina before marriage. At present, a pre-nuptial agreement is not enforceable, but it is a relevant ‘circumstance’ under s25[63].[64]
A series of appeals concerning the status of pre-nuptial contracts from foreign jurisdictions may have significant consequences for the status of such agreements in English law. Case law shows greater reference made by courts on these agreements (K v K (Ancillary Relief: Prenuptial Agreement) [2003][65]). English courts were now much more ready to attribute the appropriate (and, in the rights case, decisive) weight to an agreement as part of ‘all the circumstances of the case’ within the meaning of s.25(1)[66] of the MCA. The Law Reform Committee of the Solicitors’ Family Law Association had already called for pre-nuptial agreements to be made legally binding in a report, published in November 2004, called ‘A More Certain Future – Recognition of Pre-Marital Agreements in England and Wales’. This was in response to the government’s Green Paper ‘Supporting Families’ calling for reform. Despite this, courts have also confirmed that the parties to a divorce cannot oust the court’s jurisdiction by agreement (Charalambous v Charalambous [2004][67])[68]
In the hallmark case, Radmacher v Granatino [2010] [69], Supreme Court has set down a principle[70] for judges to consider. In order for the pre-nuptial agreement to carry a substantial weight, the following should be taken into account:
Whether the parties enter into an ante-nuptial agreement voluntarily, without undue pressure and are informed of its implications. At that time, Raj was unemployed and agreeing of the agreement is the pre-condition to the marriage, it is possibly that court will take this into account, accordance with the Raj’s emotional state and the pressure he undertook to agree at that time, and eventually eliminate the weight attached to their pre-nuptial agreement.
Whether the parties intended the agreement to be effective?
Sakina intended the agreement to be effective as it was the pre-condition to the marriage, which likely infers that she has the intention to protect the inheritance from George. For Raj likely a yes, as he knows this was the pre-condition to the marriage.
Did the circumstances prevailing at the time the court made its order make it fair or just to depart from the agreement? Importantly a nuptial agreement cannot be allowed to prejudice the reasonable requirements of any children of the family, but respect should be given to individual autonomy and to the reasonable desire to make provision for existing property. Since Sakina suffered a nervous breakdown, prima facie the custody will be granted to Raj. From the outset, £100,000 won’t be sufficient for the children in the long run and it didn’t cover the housing problem.
Statutory Provisions
The welfare of the children
s25(1) direct courts to take first consideration to the welfare of the child of the family who has not attained the age of eighteen. However, it isn’t an overriding consideration. (Suter v Suter and Jones[71]) The necessity to reach a just financial result is important as well.[72]
Court will take the criteria which set out in s25(3)[73] into account, when deciding the financial provision of the spouse with the children. s25(4)[74] should be taken into account too, when dealing with Umbria who is not the child of Raj. [75]
Practically, in order to uphold child’s interest, court must make sure neither one of the parents be in strained circumstances as it would cause the child distress (E v E (Financial Provision) [1990][76]). Baroness Hale in Miller; McFarlane[77] also expressed that it is important to ensure the primary carer is properly provided for[78].Then, matrimonial home is brought into picture. Generally, the court may think it is in child’s best interest if he or she and the parent who is caring for him or her remain in the matrimonial home (B v B (Financial Provision: Welfare of Children and Conduct) [2002][79]). Lastly, the child’s interest is relevant when considering the philosophy of self-sufficiency, or making a maintenance order. Basically, a parent caring for young children shouldn’t be expected to seek employment.[80]
s25(2)(a)[81]
Financial Resources
The word "resources" is unqualified, and all kinds of financial resources can be taken into consideration.( Schuller v Schuller [1990][82]). George’s inheritance will be taken into account. However, it is unlikely for the court to divide the property into half, as suggested in L v L [2008][83], B v B (Ancillary Relief) [2008][84] – equal division is deemed to be inappropriate where the bulk of resources available were inherited by one of the spouses. Besides, since the marriage is only two years, equal division is deemed to be inappropriate when the marriage is short, was suggested in the case of McCartney v Mills McCartney [2008][85].[86]
In this circumstance, it is important to distinguish the matrimonial property from non-matrimonial property when determining the requirement of fairness, suggested by Lord Nicholls in Miller. Prima facie the only marital asset is the business, or at best the matrimonial home as well. The redistribution might confine to the business, less likely the inheritance will be redistributed.
It should be noted that, the income of Vince may be relevant as it may indicate that Sakina has more available resources. (Macey v Macey [1981][87]), thereby reducing her need. However court has no power to make an order which involve third party’s resources. (Re L (Minors(Financial Provision)[1979][88][89]
Earning Capacity
The court is concerned with what each spouse could reasonably earn and neither may enjoy the privilege of earning less than their capacity. (Hardy v Hardy [1981][90]) Here may be noted that the court can take into account potential or notional earning capacity where this is appropriate. A spouse cannot therefore reduce his liability (or increase his needs) by becoming intentionally unemployed or by taking a job at a much lower rate of pay than might reasonably be expected.[91]
The court will consider not only the spouse’s present income, but also the extra earnings that could be gained by working overtimes.(J-PC v J-AF [1955][92]) [93]Court will take Sakina and Raj’s current earning capacity into account as well as the enhancement of the capacity where there has a clear evidence and appropriate to do so.
Currently Sakina suffers nervous breakdown and unable to work, hence her earning capacity is greatly reduced or nil, it means that she needs more financial support in order to continue her life. However, in the case her illness is recoverable, court should take that potential earning capacity that she might have. For Raj, his capacity will be considered, although the business was prospered by Sakina assistance.
s25(2)(b)[94]
Needs
The court assesses ‘reasonable needs’ (see Leadbeater v Leadbeater[1985][95]). From the fact, it is a wealthy couple, therefore their needs are assessed as greater than those of the less affluent. (Preston v Preston [1981][96]; Gojkovic v Gojkovic [1990][97]).[98] In the context of the rich, ‘reasonable requirements’ of the spouses should be referred to, rather than their ‘needs’.
When courts access reasonable requirement parties’ contribution during marriage is highly relevant. The more significant party contributed the more will be awarded.(Conran v Conran [1997][99]) The size of the award had to be determined by the factors in the MCA s.25(2) and should not be limited to the payee’s reasonable requirements, which was only one of the criteria (McFarlane v McFarlane [2004]). It should be noted that the reasonable requirement is not subjective access by the payee (Dart v Dart [1996][100]). [101]
Mance LJ in the case of Cowan[102], suggested that if the claimant’s needs cannot be met without recourse to that property, then the non-marital property would carry little weight. However, in case resources produced a surplus, then non-matrimonial property is likely would remain with the party who had brought them into the marriage. (Norris v Norris [2003][103] ; Elliott v Elliott [2001][104])[105]
In many cases the first need the court will consider is housing, therefore it will always seek to ensure that the children and their carer are housed. Where possible the next concern will be to provide money for the non-resident parent to be rehoused. In the case of an owned property, Mesher order[106] and Martin order[107] have been used to enable both parties to share in the value of the house. The needs of the matrimonial home of Raj and children will be considered.
obligations and responsibilities
Obligation which are voluntarily assumed unlikely will be considered, it will be judged in the light of reasonableness (Slater v Slater (1982)[108];Delaney v Delaney [1990][109]). However, costs of a new family and the needs of a new spouse are relevant (Barnes v Barnes [1972][110]). Where there are children, the liability of either party under the Child Support Act 1991[111]is an obligation to be taken into account.[112] Court will consider the Raj’s obligation towards the children and the Sakina’s obligation towards her new family.
s25(c)[113]
The living Standard of the Parties
Generally, an adequate recognition of the standard of living prior to the divorce will be made, but the same standard of living need not be replicated. (Attar v Attar (No 2) [1985][114]). However, this factor is be relevant to rich couples in particular (Leadbeater v Leadbeater [1985][115]). In most cases, the concern of the court will be to ensure that the standard of life of one party does not deteriorate to a greater extent than that of the other. (M v M (Financial Provision) [1987][116]; Leadbeater v Leadbeater [1985]; P v P (Financial Relief: Non-disclosure) [1994][117].)[118]
For wealthy spouse’s reasonable requirements are calculated by considering the expenditure during marriage (Dart v Dart) but not hopes and expectations (Miller v Miller [2006]). An exception to this approach was highlighted in A v A (Financial Provision)[1998][119] court suggested that the wife’s reasonable requirements could be calculated by asking what standard of life she might have expected to enjoy being married to a man of that wealth. [120]
s25(2)(d)[121]
Age of parties and the duration of marriage
The shorter the marriage, the less likely the court will make a substantial award. (Attar v Attar) In relation to short marriages of very rich couples only marital assets would be divided in half.[122] In longer marriages all the spouse’s property could be divided.
However, the duration of a short marriage is not an isolated factor, other important factors[123] will be considered. Foster v Foster [2003][124] had made clear that all the s 25 guidelines must be applied in such a case.[125] There have some exceptional cases which contrast with the general principle. (C v C (Financial Provision: Short Marriage)[126] ; Miller v Miller[127])[128]
Generally the period of pre-marital cohabitation will be excluded from consideration (H v H [1981][129]).[130] However, more recently the courts have recognised the artificiality of this approach. In considering the length of marriage court will also take into account of the total length of relationship, the pre-marital cohabitation. A more contemporary approach can be derived from GW v RW (Financial Provision: Departure from Equality)[2003][131] where it was held that where a marriage moved seamlessly from cohabitation to marriage it was unrealistic and artificial to treat the periods differently.[132] However in Co v Co[2004][133], Coleridge J preferred to see pre-marital cohabitation not as a factor which was relevant when considering the length of the marriage, but part as of the general circumstances of the case.[134] Court likely to consider the fact that both parties had been cohabitating for seven years as this will be unrealistic if not taken into consideration.
s25(2)(e)[135]
Any Mental or Physical Disability of the Parties
This factor is usually considered when the courts look at needs. In C v C (Financial
Provision: Personal Damages) [1995][136] badly disabled husband was held to be entitled to £5 million. This resulted in his wife being left on social security benefits[137].[138]
Similarly, Sakina nervous breakdown court might look into her needs, Raj’s financial provision likely to be reduced.
s25(2)(f)[139]
Contributions has made by each parties
The position of the spouse who merely contributed in housework or child care has been recognised in Miller; McFarlane. This section can cover contribution to business (Gojkovic v Gojkovic [1990][140]). Sakina has contributed both business and taking care of the children, her contribution is more significant than Raj. Based on this, the court may grant Sakina more. (Gojkovic v Gojkovic ; Vicary v Vicary[141])[142]
s25(2)(g)[143]
Conducts of the Parties –
At one time conduct was considered very important[144]. However the court attitude had changed, considerations of conduct were held rarely to be relevant. The test nowadays is: ‘would the right thinking member of society say that the matters of conduct were such that it would be inequitable to disregard it?’
The element of conduct has been displayed by both parties. Sakina had committed adultery and Raj had hired private detective to follow Sakina. For Sakina case, her adultery may not be relevant under this provision, as it was held in the case Miller; McFarlane husband’s adultery wasn’t sufficiently serious to take into account. For Raj, his conduct was caused by Sakina conduct, and it’s less significant than those infamous cases (K v L[145]; K v K[146]) However, it is a debateable area and it’s all depend of judges’ subjective opinion, where sometimes a less significant conduct will be taken into account (FZ v SZ [2010][147]). It should be noted that the court also take the good conduct into account which to increase a spouse’s share of financial provision (Kokosinski v Kokosinski [1980][148]).[149]
In approaching the financial provision to be granted to both parties under this, Coleridge J in H v H (Financial Rlief: Attempted Murder as Conduct[150]) has suggested that in accessing the significance of conduct the court should not be punitive, but rather it should lead the court to place greater emphasis on the needs of the ‘victim’ and less on the blameworthy party.[151]
Available Orders
Upon a divorce, court can make either one of these orders: income orders, property orders. The main income order is the periodical payments order under s23 MCA1973[152]. The order can be either secured or unsecured. If it is a secured periodical payment when payment is defaulted, then the property providing security can be sold to enable payment, while the unsecured one cannot. The commonly made property orders are lump sum orders, transfer of property or power to order sale. s25A(1) [153]of the MCA place a duty for court to consider whether appropriate to make a clean break upon divorce. Which means it ends any continuing obligation between the spouses, it either can be a lump sum or property adjustment order.[154]
Based on the fact the court is likely to make the property orders, as clean break is appear to be more appropriate under this situation. As Sakina has the intention to remarriage. Then, their marriage is short, even though there are 2 children which under 18, but they are more independent compare to cases where the child is too young. Lastly, they have the sufficient wealth to make a substantial lump sum.
From the fact, if a property orders are to be made, the court likely to emphasis on the nature of property[155] in the marriage and the matrimonial home since their marriage is short. In distinguishing the type of property, judges have different approaches. Lord Nicholls understood marital property is to be all assets acquired by either party during the marriage, save those acquired by gift or inheritance. By contrast, Baroness Hale used a narrower understanding of marital assets, her preferred phrase ‘family assets’ were restricted to assets generated by the family, wouldn’t include assets which were produced by the efforts of one party alone. Charles J, J v J [156]whether an asset was a marital asset court should consider whether the couple enjoyed he asset together during the marriage. This implies that even if an asset was inherited or brought into marriage, if it was used jointly by the couple then it may thereby become marital property. This approach was followed by K v L[157]. In N v N[158] and Charman (No 4[159]) it was emphasised that the court should not undertake lengthy and time-consuming investigation as to which assets are or are not marital assets; fairness if the overreaching principle, means that a detailed analysis of the origins of assets is not normally necessary.[160]
From the above, clearly the inheritance from George is excluded, but the business would be. The business was generated during the marriage, and contributed by both parties. Hence, it is likely to be divided into half. For matrimonial home, it is contentious, it is a marital asset according to Charles J’s approach, but it isn’t according the understanding of Lord Nicholls and Baroness Hale, as it was acquired pre-marriage. However, as Raj may be the primary child carer upon divorce, he might entitle some share on the matrimonial house, as the principle of ‘needs’ would lead to court to do so. Matrimonial home unlikely be outright transferred to him, as the source of property does carry some weight in short marriage. It will be more proper to grant a Mesher order or a Martin order to Raj so the housing problem of the children and himself.
Bibliography
Books
Herring. J, Family Law 5th edition.
Nadarajah.N and George.M, Family Law Study Manual LLB
R.Bird and A.King, Ancillary Relief and Financial Orders Handbook, 8th edition
Online resources
University of London, course material: Chapter 2 Marriage and Civil Partnership .
University of London, course material: Chapter 6 Financial Remedies.
.
S5 and s10 MCA 1973
Principle in Radmacher v Granation [2010]
.
Legislation
Child Support Act 1991.
Family Law Act 1996.
Family Law Act 1996, Part I.
Family Law Act 1996, Part II.
Matrimonial and Family Proceedings Act 1984.
Matrimonial Causes Act 1857.
Matrimonial Causes Act 1923.
Matrimonial Causes Act 1937.
Matrimonial Causes Act 1973.
Matrimonial Causes Act 1973, s1(1).
Matrimonial Causes Act 1973, s1(2).
Matrimonial Causes Act 1973, s1(2)(a).
Matrimonial Causes Act 1973, s1(2)(b).
Matrimonial Causes Act 1973, s1(3).
Matrimonial Causes Act 1973, s1(4).
Matrimonial Causes Act 1973, s3(1).
Matrimonial Causes Act 1973, s5.
Matrimonial Causes Act 1973, s10.
Matrimonial Causes Act 1973, s23.
Matrimonial Causes Act 1973, s25.
Matrimonial Causes Act 1973, s25(1).
Matrimonial Causes Act 1973, s25(2).
Matrimonial Causes Act 1973, s25(2)(a)
Matrimonial Causes Act 1973, s25(2)(b)
Matrimonial Causes Act 1973, s25(2)(c)
Matrimonial Causes Act 1973, s25(2)(d)
Matrimonial Causes Act 1973, s25(2)(e)
Matrimonial Causes Act 1973, s25(2)(f)
Matrimonial Causes Act 1973, s25(2)(g)
Matrimonial Causes Act 1973, s25(3).
Matrimonial Causes Act 1973, s25(4).
Matrimonial Causes Act 1973, s25A(1).
Cases
A v A (Financial Provision) [1998] 2 FLR 180.
Attar v Attar (No 2) [1985] FLR 653.
B v B (Ancillary Relief) [2008] EWCA Civ 543.
B v B (Financial Provision: Welfare of Children and Conduct) [2002] 1 FLR 555.
Bannister v Bannister [1980] 10 Fam Law 240.
Barnes v Barnes [1972]
Browne v Browne [1989] 1 FLR 291.
Buffery v Buffery [1988] 2 FLR 365.
C v C (Financial Provision: Personal Damages) [1995] 2 FLR 171.
Calderbank v Calderbank [1976] Fam 93.
Carter-Fea v Carter-Fea [1987] 17 Fam Law 131.
Charalambous v Charalambous, The Times, September 7, 2004.
Charman v Charman [2007] EWCA Civ 503
Co v Co[2004] EWHC 287(Fam).
Conran v Conran [1997] 2 FLR 615.
Cowan v Cowan [2001] 2 FLR 192.
Dart v Dart [1996] 2 FLR 286.
Delaney v Delaney [1990] 2 FLR 457.
E v E (Financial Provision) [1990] 2 FLR 233.
Elliott v Elliott [2001] 1 FCR 477.
Foster v Foster [2003] 2 FLR 299.
FZ v SZ [2010] EWHC 1630(Fam);
Gojkovic v Gojkovic [1990] 1 FLR 140.
Gollins v Gollins [1964] AC 644 HL.
GW v RW (Financial Provision: Departure from Equality) [2003] 2 FLR 108.
H v H (Financial Rlief: Attempted Murder as Conduct) [2006] Fam Law 264.
H v H [1981] 2 FLR 392.
Hardy v Hardy [1981] 2 FLR 321.
J-PC v J-AF [1955] P 215.
K v K (Ancillary Relief: Prenuptial Agreement) [2003] 1 FLR 120.
K v K (Financial Provision: Conduct) [1990] 2 FLR 225
K v L [2010] EWCA Civ 125;
Katz v Katz [1972] 3 All ER 219.
Kokosinski v Kokosinski [1980] 1 All ER 1106.
L v L [2008] 1 FLR 142.
Lambert v Lambert [2002] 3 FCR 673.
Leadbeater v Leadbeater[1985] 15 Fam Law 280.
Livingstone Stallard v Livingstone Stallard [1974] Fam 47, 54.
M v M (Financial Provision) [1987] 2 FLR 1.
Macey v Macey [1981] 3 FLR 7.
McCartney v Mills McCartney [2008] 1 FCR 238.
McFarlane [2006] UKHL 24.
Miller v Miller; McFarlane v McFarlane [2006] 3 All ER1.
Norris v Norris [2003]
P v P (Financial Relief: Non-disclosure) [1994] 2 FLR 381.
Pheasant v Pheasant [1972] Fam 202.
Preston v Preston [1981] FLR 331.
Radmacher v Granatino [2010] UKSC 42.
Re L (Minors) (Financial Provision)[1979] 1 FLR 39.
Richards v Richards [1972] 3 All ER 695.
Schuller v Schuller [1990] 2 FLR 193.
Slater v Slater (1982) 3 FLR.
Suter v Suter and Jones [1987] Fam 111.
Thurlow v Thurlow [1975] 2 All ER 979.
VB v JP [2008] FCR 682.
Vicary v Vicary [1992] Fam Law 428.
Wagstaff v Wagstaff [1992] 1 FLR 333.
White v White [2001] 1 AC 596.
[1]Matrimonial Causes Act 1857.
[2] Whereas a wife’s adultery was sufficient to entitle her husband to a decree, adultery by the husband was not by itself a ground of divorce for the wife unless she could also prove some other misconduct on his part.
[3] Matrimonial Causes Act 1923.
[4] include cruelty, desertion or incurable insanity.
[5] Matrimonial Causes Act 1937.
[6] J.Herring, Family Law 5th edition, 108.
[7] Matrimonial Causes Act 1973, hereinafter referred as MCA 1973.
[8] J.Herring, Family Law 5th edition,116-118.
[9] Family Law Act 1996, hereinafter referred as FLA 1996.
[10] Family Law Act 1996, Part II.
[11] J.Herring, Family Law 5th edition,119.
[12] marriage counselling, conciliatory divorce and mediation.
[13] University of London, course material: Chapter 2 Marriage and Civil Partnership .
[14]which focus on saving saveable marriages and, where they do break down, bringing marriages to an end with the minimum distress to the parties and children affected.
[15] Family Law Act 1996, Part I.
[16] University of London, course material: Chapter 2 Marriage and Civil Partnership .
[17] Matrimonial Causes Act 1973, s3(1).
[18] Matrimonial Causes Act 1973, s1(1).
[19] Matrimonial Causes Act 1973, s1(2).
[20] Buffery v Buffery [1988] 2 FLR 365.
[21] Richards v Richards [1972] 3 All ER 695.
[22] Matrimonial Causes Act 1973, s1(3).
[23] N.Nadarajah and M.George, Family Law Study Manual LLB,63.
[24] Matrimonial Causes Act 1973, s1(2)(a).
[25] Matrimonial Causes Act 1973, s 1(2)(b)
[26] Pheasant v Pheasant [1972] Fam 202.
[27] Katz v Katz [1972] 3 All ER 219.
[28] Thurlow v Thurlow [1975] 2 All ER 979.
[29] N. Nadarajah and M.George, Family Law Study Manual LLB,65-67.
[30]Carter-Fea v Carter-Fea [1987] 17 Fam Law 131.
[31]Gollins v Gollins [1964] AC 644 HL.
[32]Bannister v Bannister [1980] 10 Fam Law 240.
[33] University of London, course material: Chapter 2 Marriage and Civil Partnership .
[34]Livingstone Stallard v Livingstone Stallard [1974] Fam 47, 54.
[35] This was endorsed by the Court of Appeal in O’Neil v O’Neil and Buffery v Buffery.
[36] University of London, course material: Chapter 2 Marriage and Civil Partnership .
[37] Direction for jury will be: Would any right-thinking person come to the conclusion that this husband has behaved in such a way that his wife cannot reasonably be expected to live with him, take into account the whole of the circumstances and the characters and personalities of the parties?
[38] J.Herring, Family Law 5th edition, 113.
[39] Matrimonial Causes Act 1973, s5.
[40] Matrimonial Causes Act 1973, s10.
[41]h.
[42]Matrimonial Causes Act 1973, s1(4).
[43] Wagstaff v Wagstaff [1992] 1 FLR 333.
[44]Matrimonial Causes Act 1973, s25.
[45] Matrimonial and Family Proceedings Act 1984.
[46] Matrimonial Causes Act 1973, s25(1).
[47] Matrimonial Causes Act 1973, s25(2).
[48] This means that former wives can be ordered to maintain their ex-husbands or vice versa
[49]Calderbank v Calderbank [1976] Fam 93.
[50] Browne v Browne [1989] 1 FLR 291.
[51] University of London, course material: Chapter 6 Financial Remedies.
[52] R.Bird and A.King, Ancillary Relief and Financial Orders Handbook, 8th edition, 15.
[53] White v White [2001] 1 AC 596.
[54] J.Herring, Family Law 5th edition, 232-233.
[55] Lambert v Lambert [2002] 3 FCR 673.
[56] Charman v Charman [2007] EWCA Civ 503
[57] B v B( Ancillary Relief) [2008] FCR 613.
[58] J.Herring, Family Law 5th edition, 238-239.
[59] McFarlane [2006] UKHL 24.
[60] In the case wife had lost significant earning potential as a result of marriage, if the asset were divided equally, within few years husband would be many times wealthier than wife therefore periodic payments were necessary to compensate.
[61] VB v JP [2008] FCR 682.
[62] J.Herring, Family Law 5th edition, 239.
[63] Matrimonial Causes Act 1973, s25.
[64] University of London, course material: Chapter 6 Financial Remedies.
[65] K v K (Ancillary Relief: Prenuptial Agreement) [2003] 1 FLR 120.
[66]Matrimonial Causes Act 1973, s25(1).
[67]Charalambous v Charalambous, The Times, September 7, 2004.
[68] University of London, course material: Chapter 6 Financial Remedies.
[69]Radmacher v Granatino [2010] UKSC 42.
[70] .
[71]Suter v Suter and Jones [1987] Fam 111.
[72] J.Herring, Family Law 5th edition, 223.
[73]Matrimonial Causes Act 1973, s25(3).
[74] Matrimonial Causes Act 1973,, s25(4).
[75] N. Nadarajah and M.George, Family Law Study Manual LL, 137.
[76]E v E (Financial Provision) [1990] 2 FLR 233.
[77]Miller v Miller; McFarlane v McFarlane [2006] 3 All ER1.
[78] Because it is well known that the security and stability of children depends in large part upon the security and stability of their primary carer.
[79] B v B (Financial Provision: Welfare of Children and Conduct) [2002] 1 FLR 555.
[80] J.Herring, Family Law 5th edition, 224.
[81] Matrimonial Causes Act 1973, s25(2)(a).
[82]Schuller v Schuller [1990] 2 FLR 193; encompass property inherited after divorce.
[83] L v L [2008] 1 FLR 142.
[84] B v B (Ancillary Relief) [2008] EWCA Civ 543.
[85]McCartney v Mills McCartney [2008] 1 FCR 238.
[86]R.Bird and A.King, Ancillary Relief and Financial Orders Handbook, 8th edition, 24.
[87]Macey v Macey [1981] 3 FLR 7.
[88]Re L (Minors) (Financial Provision)[1979] 1 FLR 39.
[89] University of London, course material: Chapter 6 Financial Remedies.
.
.
[90] Hardy v Hardy [1981] 2 FLR 321.
[91] University of London, course material: Chapter 6 Financial Remedies.
[92]J-PC v J-AF [1955] P 215.
[93] J.Herring, Family Law 5th edition, 225.
[94] Matrimonial Causes Act 1973, s25(2)(b)
[95] Leadbeater v Leadbeater[1985] 15 Fam Law 280.
[96] Preston v Preston [1981] FLR 331.
[97] Gojkovic v Gojkovic [1990] 1 FLR 140.
[98] University of London, course material: Chapter 6 Financial Remedies.
.
[99] Conran v Conran [1997] 2 FLR 615.
[100]Dart v Dart [1996] 2 FLR 286.
[101] R.Bird and A.King, Ancillary Relief and Financial Orders Handbook, 8th edition, 30.
[102]Cowan v Cowan [2001] 2 FLR 192.
[103]Norris v Norris [2003]
[104]Elliott v Elliott [2001] 1 FCR 477.
[105] University of London, course material: Chapter 6 Financial Remedies.
.
[106] A Mesher order is, in essence, the imposition of a postponed trust for sale of the home until the youngest child has attained the age of 17 or ceases full-time education the home. Mesher v Mesher [1980].
[107] A Martin order, gives the spouse the right to occupy the house until her death or remarriage or her dependence on another. (Martin v Martin)
[108]Slater v Slater (1982) 3 FLR.
[109]Delaney v Delaney [1990] 2 FLR 457.
[110]Barnes v Barnes [1972]
[111] Child Support Act 1991.
[112] University of London, course material: Chapter 6 Financial Remedies.
.
[113] Matrimonial Causes Act 1973, s25(2)(c).
[114]Attar v Attar (No 2) [1985] FLR 653.
[115] Leadbeater v Leadbeater [1985] FLR 789.
[116]M v M (Financial Provision) [1987] 2 FLR 1.
[117] P v P (Financial Relief: Non-disclosure) [1994] 2 FLR 381.
[118] University of London, course material: Chapter 6 Financial Remedies.
.
[119] A v A (Financial Provision) [1998] 2 FLR 180; where the spouse lived a frugal life despite being extremely wealth.
[120]J.Herring, Family Law 5th edition, 227.
[121] Matrimonial Causes Act 1973, s25(2)(d).
[122] In Miller, Lord Nicholls suggested that in short marriage fairness may require that the claimant shouldn’t be entitled to a share of the other’s non-matrimonial property.
[123] as contributions (or lack of contributions), children, and earning potential.
[124]Foster v Foster [2003] 2 FLR 299.
[125] R.Bird and A.King, Ancillary Relief and Financial Orders Handbook, 8th edition,
35.
[126] wife couldn’t be expected to enter employment, child’s health was uncertain, no likelihood that the wife would be able to become independent.
[127] Substantial income was generated during the short marriage.
[128] University of London, course material: Chapter 6 Financial Remedies.
.
[129]H v H [1981] 2 FLR 392.
[130] N. Nadarajah and M.George, Family Law Study Manual LLB, 147.
[131]GW v RW (Financial Provision: Departure from Equality) [2003] 2 FLR 108.
[132] R.Bird and A.King, Ancillary Relief and Financial Orders Handbook, 8th edition, 36.
[133]Co v Co[2004] EWHC 287(Fam).
[134] J.Herring, Family Law 5th edition, 228.
[135] Matrimonial Causes Act 1973, s25(2)(e).
[136] C v C (Financial Provision: Personal Damages) [1995] 2 FLR 171.
[137] The nature of the husband’s disability meant that in responding to his needs he had to
have complex equipment and constant care and so he took all the assets.
[138] University of London, course material: Chapter 6 Financial Remedies.
.
[139] Matrimonial Causes Act 1973, s25(2)(f).
[140]Gojkovic v Gojkovic [1990] 1 FLR 140.
[141]Vicary v Vicary [1992] Fam Law 428.
[142] University of London, course material: Chapter 6 Financial Remedies.
.
[143] Matrimonial Causes Act 1973, s25(2)(g).
[144] A wife who was regarded as guilty of marital misconduct could expect a low award (Wachtel v Wachetel)
[145] K v L [2010] EWCA Civ 125; Husband sexually abused wife’s grandchildren.
[146] K v K (Financial Provision: Conduct) [1990] 2 FLR 225; The wife helped her husband’s suicide attempt as she wished to acquire his estate and to set up a new life with her lover.
[147] FZ v SZ [2010] EWHC 1630(Fam); It was held that al false allegation of domestic violence by the wife was sufficient to amount to conduct.
[148] Kokosinski v Kokosinski [1980] 1 All ER 1106.
[149] J.Herring, Family Law 5th edition, 230- 231.
[150] H v H (Financial Rlief: Attempted Murder as Conduct) [2006] Fam Law 264.
[151] J.Herring, Family Law 5th edition, 231.
[152]Matrimonial Causes Act 1973, s23.
[153]Matrimonial Causes Act 1973, s25A(1).
[154] J.Herring, Family Law 5th edition, 217-218.
[155] In Miller, Lord Nicholls held that in a short marriage it may be fair only to divide marital property, which is the property acquired during marriage.
[156] J v J [2009] EWHC 2654 (Fam).
[157] K v L[2010] EWHC 1234 (Fam).
[158] N v N [2010] EWHC 717 (Fam).
[159] Charman (No.4) [2007] EWCA Civ 503.
[160] J.Herring, Family Law 5th edition, 238.
by
xiuling940918gmailcom (student)
