Ancillary relief

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What is being distributed?

Income and assets- equity in any property owned, net value of business, savings investments shares etc, funds held in a pension, cars collections jewellery etc, income (salary, dividends, rental income, benefits, pension) and any anticipated change in resources. 

Income needs- loans and other financial liabilities, life style expenses (mortgage/rent, bills, food, clothing, entertainment), taxes, share of childrens costs including education, support obligations to others eg new partner, housing, any anticipated change in needs. 

s25 MCA contains statuory factors that must be considered. Children must always be the first consideration. 

The judiciary do have aims for division. 

  • Meeting reasonable needs- the needs may vary with the wealth of the parties (generous as accounts for standard of living) , length of the marriage- reasonable needs for a transition period or for life?
  • Yardstick of equality (Sharing principle) White v White- equal division is the starting point- assume equal contribution as between husband and wife. 
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Aims of division

  • Should only depart from equality principle for good reasons- needs, genius-leading to extra ordinary contribution, inheritance/parental contribution, non-marital property, obvious and gross misconduct, compensation, clean break, autonomy (pre-nups or separate finances).
  • Compensation. 

Need to start by identifying the parties needs. 

Then need to consider the needs of children- 

Money for the childs care- the future needs of children as they age out of minority- Young v Young.

Home- ideally a good home for both parents having contact, but depends on resources. Try to keep children in current home- school, friends, stability etc. Ensuring security and stability for primary carer so child can be well looked after- Miller, McFarlane. Remain in matrimonial home even if that inhibits non-resident parents ability to buy a new home- B v B. 

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Children

Parental income- avoiding dramatic disparity between households- RK v RK. Expectation that the primary carer of young children will not be required to seek employment- Waterman v Waterman, Young v Young. 

The matrimonial home- this is often the parties major asset. 

s24A MCA- the property is sold and the proceeds of sale are divided. This is only worth doing if there would be enough funds for two houses. The court can order the proceeds to be split in the proportions they want. This provides a clean break. This is particularly appropriate where there are no children and each spouse can be adequately housed with the proceeds. It is also appropriate where the parties are young as they can clean break and realise their investment. 

The parties may already have two properties- Hanlon v Hanlon (may adjust for difference in value). 

H v H. Schuller v Schuller. 

If keep the home, what happens to the non residents financial interest? 

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Houses

Buy out- the property to be transferred into the sole name of one of the spouses- s24(1)(a). This has the advantage of achieving clean break. Also benefits as the remaining spouse doesnt have to fear selling later on. 

Courts have been willing to order this where the other party has alternative accomodation or sufficient resources to secure accomodation.

  • Hanlon v Hanlon- secure accomodation as part of his employment
  • H v H- acquired interest in property through marriage to another. 
  • Schuller v Schuller- had additional wealth through inheritance so the property was vested in the other spouse alone. 

The court can order that the spouse be compensated for his loss by a lump sum payment, perhaps raised through remortgaging. Similar to sale as they both get their value of the property. The benefit here is that the original property is retained preserving continuity for the child. The disadvantage is that unless made with compensation payments, it may give unfair weight to one spouse to the expense of the others rights. Where circumstances change, there is no way atm to reopen the matter and correcting the imbalance. The court prefers giving a share in the home. 

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Houses

There may be a need for one spouse to remain, even if there will be sever consequences for the other. This may be where they are the primary carer of children. May be due to illness or serious disability- Smith v Smith and C v C. 

Postpone sale and division of proceeds until specific event- the court can order that property co-ownership continue but the right of occupation is given solely to the spouse who remains in occupation. Sale of the property is then deferred until a specific event has occurred. There are two main ways of achieving this. 

Mesher order- the property remains in co-ownership with the sale postponed until the youngest child reaches a specific age or finishes their fulltime education, or live independently. Original Mesher case involved settlement for the property on the spouses trust of equal shares until the youngest child reached 17. The order is always related to children. 

  • Sawden v Sawden- very generous approach where sale of property was postponed until the adult children had left the family home and settled in their own houses. 
  • Mansfield v Mansfield- while the origin of the assets didnt exclude them from the courts dispositive powers, it had an exceptional factors which made the case particulary suitable for a Mesher order. 
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Houses

These orders are not popular with the judiciary. They contradict the ideal of finality and also store up problems for the future. 

Clutton v Clutton- obiter comments. Where there is doubt about the wife's ability to rehome herself when the charge is made, a Mesher order should not be made.  

Another disadvantage is that children do not stop needing a home when they finish school etc. It may not be realistic to expect them to earn sufficient income to rent or buy accomodation. This explains Sawden. 

Martin order- one spouse may have a particularly pressing need to be accomodated in the matrimonial home. It has sometimes been seen as appropriate that while the home remains jointly owned, the wife should be allowed to live in the property for the rest of her life. The husband will never see his share if he predeceases her. Normally allows the property to be sold if she remarries or cohabits with another man. 

Clutton v Clutton- sale of the house would be postponed until the wife died, remarried, or cohabited with another man and proceeds should be 2/3rds to the wife and 1/3rd to the husband.

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Houses

Tattersall v Tattersall- it would be decades until the husband saw his share. 

Transfer of tenancies- power under s53 of Family Act 1996 to make an order transferring a relevant tenancy from one spouse to the other at any time where it has the power to make a property adjustment order. Cannot be made if the other party has remarrried. 

Inheritance- the court rarely assumes future inheritance when they are making orders- C v C. However this may be grounds for future variation. 

Money for the wife- should there be a clean break or lump sum? 

Yes- made wherever possible- Matthews v Matthews. Steer the wife towards financial independence- ** v NS. Where continuing support provides no benefit (small amount of pay). Short childless marriage. Both spouses have well established careers. Avoids further antagonism. PPO's can be insecure eg if you lose your job in the future. Wealthy- Duxbury cases. This provides for as little financial engagement as possible. 

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Clean break or lump sum?

No- unable to adjust for changed circumstances, young children, uncertain financial future, financial independence unlikely to be established, lengthy marriage, available capital too small to achieve fairness by lump sum. 

If total clean break is not possible, may prefer an extendable term rather than a joint lives order in the hopes of independence- ** v NS. 

s25A(1) imposes a duty on the court to consider in all cases, whether the parties obligations towards each other should be terminated as soon as the court considers just and reasonable. the court must ask itself if it is appropriate to exercise its power and whether the outcome will be just and reasonable. 

Miller McFarlane- Lady Hale described the approach under s25A(1) 'it assumes the court has decided that some award is appropriate. The court is then required to consider whether it could achieve an appropriate result by bringing their mutual obligations to an end. This is a clear steer in the direction of lump sum and property adjustment orders with no continuing periodical payments. But it does not tell us much about what an appropriate resutl would be.' 

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Clean break or lump sum?

Courts strive for independent finances and self sufficiency.

Minton v Minton- 'an object of modern law is to encourage parties to put the past behind them and to begin a life which is not overshadowed by the relationship which has broken down.'  

  • Matthews v Matthews- pursuant to section 25A there is a 'statutory steer' towards a clean break order and it should be made wherever possible. 
  • Ashley v Blackman- may not be appropriate where a lump sum would lead to a reduction in benefits. 

If the parties are very wealthy they may have sufficient capital for a clean break. 

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Card needs to go after number 4

Power of sale under s24- 

Undertakings- these enable spouses to promise the court to do certain things which the court cannot order them to do because they fall outside of statute. 

  • Kensington Housing Trust v Oliver- Butler Sloss- 'undertakings are convienent since a party can promise to do or abstain from that which a court would be unable to order. In that way an undertaking may cover a situation not capable of being the subject of a court order.' 

It is common for a husband to undertake to make mortgage repayments on the matrimonial home still. Or he might take out insurance on his life. The advantage of this is they can be more flexible and imaginative than the range of order available to the court. 

  • L v L- held that while the court was prohibited from awarding a spouse PP beyond their remarriage, neither legislation or public policy prevented a former spouse from voluntarily assuming to pay maintenance beyond remarriage. Such a promise could be embodied in a formal undertaking. They are enforceable just as direct orders. 
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Period payment order-

Nominal orders- the court rarely makes a clean break order where there are young children of school age. Court can make a nomial periodical payment so that it can be varied upwards if needs be.

  • Whiting v Whiting- court held that the trial judge had been entitled to take the view that PP should be kept alive by a nominal sum in the case of unforeseen contingencies such as illness or redunancy, should prevent the wife from making adequate provision for her own needs and made it necessary to look to her ex husband for support. Much depends on the facts of the case. 

S25A(2)- the courts duty arises when a clean break order is not appropriate and an order for PP has been made. The court is then required to consider whether it would be appropriate to limit the term of these payments to only such a term as would be sufficient to enable the recipient to adjust without undue hardship to the termination of his or her financial dependence on the other. 

  • Barrett v Barret- CoA made clear that this provision does not say that there must be termination unless there is a good reason for there not to be. Rather the court must be satisfied on the evidence, of the spouses ability to adjust without undue hardship within any proposed term set out. 
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Period payment order-

To what extent are non working claimants expected to obtain employment and become self sufficient on divorce? Depends on the circumstances. A spouse who doesnt have child care responsibilites must make a real attempt to find work. However if the claimant is middle aged and absent from the labour market for sometime, the court will not usually expect her to be able to secure full time employment. 

  • M v M- 'the wife is no longer a young woman and she is beginning to enter the world of work from a base of 46 years old. She is embarking on an unpredictable life in an increasinly difficult world of work- things do not get easier. The older she gets, in all probability, the more difficult it will be for her to work and make her way in that world of employment.' 
  • Boylan v Boylan- it was held it would be wrong to construe the words 'undue hardship' as referring solely to the bare needs of the former wife when assessing her ability to adjust to PPO. Rather her reasonable requirements should be judged by the standard that she was the former wife of a man of substantial wealth.' 

One spouses past contributions as primary carer may justifiably limit their economic self sufficiency as their age and lack of recent training may hinder their opportunity to re-enter the labour market. Same may apply where the spouse has current child care responsibility. 

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Period payment order-

Miller McFarlane- Hale indicated that prioritising the childs welfare 'should also involve ensuring that their primary carer is properly provided for, because it is well known that the security and stability of children, depends on large, par upon the security and stability of their primary carer.' 

It is unlikely to expect the carer of young children to find employment on divorce. The court may not be able to tell when this ends and may not put a time limit on the PPO. This leaves the payer to seek a variation of the order. Even after a short marriage the court may still reach the same conclusion. 

  • C v C- marriage only lasted 9 months but they had a child with health problems. Wife was 40 and her position in entering labour market was less favourable. Wife could not be expected to return to her former occupation, sex work, and not clear she could become otherwise independent (fragile personality).  Granted a lump sum £195,000 and £19,500 pa without a limit of time. 
  • G v G- no entitlement to PPO rather than returning to work. Should seek an approach that achieves independence and self sufficiently based on parties resources, including earning capacity. PPO of £35'000 pa to facilitate ongoing childcare, but reduced over 6 years to reflect increased earning potential.
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Period payment order-

Deferred clean break where clear evidence that financial independence is likely at the end of the period of maintenance. For older spouses the capacity to regain earning potential will be more limited- 

  • A v A- 45 year old with engineering degree, out of the job market for children.
  • M v M- 46. 
  • Waterman v Waterman- child of tender years and uncertainty- 5 year term was inappropriate. 

There is no absolute principle that a care giver can expect a joint lives PPO or use the fact of caregiving to rely on lifelong financial support. Courts seem to favour cutting spousal maintenance at the earliest opportunity when the wife has become financially stable.

  • Wright v Wright- the wife, who was 51, was expected to obtain employment as her child care responsibilities. Mr W was ordered to pay £33,200 pa and child maintainence of £10,400 per child until age 17. He applied for 2012 for downward variation as his financial circumstances had deteriorated. The wife was expected to begin working again within 2 years and hadnt. Judge was critical of this and varied downwards over 6 years to a stop. 
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Period payment order-

  • ** v NS- set out some principles. On clean break, the court must consider termination of spousal maintenance as soon as just and reasonable. A term should be considered unless the payee would be unable to adjust without undue hardship to the ending of payments. A degree of hardship in the transition is acceptable. Should steer towards a clean break. Increased use of fixed, but can be extended if appropriate. 

Extension of the term- an order will come to an end when the term expires. Can be varied under s31. If a spouse applies for extension, then it should consider a duty to end them asap and can order a lump sum, property adjustment order or pension sharing order instead. 

A s28(1A) direction- to prevent the lack of clean break, s25A(2) should be considered alongside s28(1A) which says that under s31 a party can be blocked from applying to vary the order. In this way a postponed or deferred clean break can be acheived. 

  • Waterman v Waterman- set a term of 5 years and attached a s28(1A) order. Although the 5 year term was not wrong, the s28(1A) direction was inappropriate given a 'child of tender years' and uncertainty regarding the mothers future employment.
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Courts discretion

On rare occasions the court may refuse to exercise their discretion on policy grounds.

  • Whiston v Whiston- wife was a bigamist and applied for a financial order to nullity proceedings. They refused to exercise their discretion in her favour, holding that as a matter of public policy she should not benefit from her crime. The fact conduct is in s25(2) does not prevent the application of the doctrine. 

The courts general discretion under s25(1)- have to regard all circumstances of the case. Application depends on facts. 

First consideration is welfare of children- minors under s25(1).

  • Suter v Suter and Jones- the words first consideration mean that the child's welfare is to be regarded as first importance borne in mine throughout consideration of all the circumstances but it not the overriding consideration. They have to look at all the circumstances including the importance of children to make a just ruling. 

This normally means a home for the primary carer and children, and in many cases that may absorb all that is available. 

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Statutory factors

Under s25(2)- 

Financial resources of each spouse-

  • Pearce v Pearce- said the word resources should approach the matter realistically, taking into account all available resources and doing justice in the circumstances in a realistic fashion with real figures. 

Issues of inheritance may cause issues. These have sometimes been deemed too uncertain to be included- Schuller v Schullers.

  • Micheal v Micheal- court adjorned proceedings pending inheritance. 

Personal injury damages can be taken into account. A difficulty is where a spouse enjoys access to wealth but is not entitled to it or where they have substantial means but a liquidity problem. 

  • Thomas v Thomas- husband had large loan secured on family home and no other security. His immediate income was modest. The court is not obliged to limit its order exclusively to resources or capital which are actually shown to exist. 
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Statutory factors

  • TL v ML- claimant said they should take into account husband's parents resources and make them available for distribution. Rejected the claim as he had no beneficial interest in it. 

Are company assets substantially owned by one party to the marriage available on divorce? 

  • Prest v Petrodel- in the circumstances of the case, the assets were held by the husbands company on resulting trust for him since they were purchased by funds of his, rather than company profits. However as a matter of routine, the court will not pierce the corporate veil. 

Income and earning capacity- if a spouse deliberately gives up working hours or job, the court can base its order on what they would earn. A court may deem them deliberately unemployed and make an order on the assumption that they could obtain work if they tried. There may not be evidence to substantiate that though.

  • Williams v Williams- wrong for courts to make decisions on the footing of impressions about demenour or generalise local knowledge, unchecked by the hard information there may be about a mans earning capacity and employment. These should be borne in mind in periods of high unemployment. 
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Statutory factors

Full and frank disclosure of resources is required. Use balance of probabilities to assess the truth of financial circumstances. Costs penalty can be put on non complying party. 

  • Young v Young- husband alleged he was bankrupt but his ex wife said he was a wealthy man with assets of £400m. She said he had hidden this. He failed to provide details of his income for 5 years and was given 6 months in prison. 

NEW PARTNER- how this is dealt with is a matter of discretion for the judge and should not have declarations of principle which may fetter discretion. The new partners resources will not be pooled to be given out but may reduce or increase needs. 

  • Frary v Frary- where the husband cannot persuade his new partner to give evidence, he takes the risk that the court will base its order on general assertions and assumptions about the extent of the new partners means. 

The fact that one spouse has accomodation provided by a new partner may lead to postponement of their interest in the matrimonial home and to the quantification of their share being reduced. 

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Statutory factors

  • Martin v Martin- husband was living with woman he intended to marry in her council house. He gave evidence the tenancy could be put in joint names. The court treated it as part of his resources and gave the wife a life interest in the former matrimonial home, followed by an equal division on the proceeds of sale.
  • Mesher v Mesher- the woman who the husband intended to marry had provided the deposit for their new home. Her injection of resources meant that the husband's housing needs were being met, whereas the wife needed to live in the matrimonial home. The wife's greater needs meant the husbands share of the proceeds of sale was postponed until the youngest child reached 17. 

PPO where the spouse is living with a new partner. Under s28(1)(a) automatically comes to an end on remarriage. Doesn't apply to mere cohabitation. However they can consider the new living arrangements. 

  • Atkinson v Atkinson- CoA held cohabitation is a matter to be taken into account and is conduct it would be inequitable to disregard under (g). May be inappropriate for maintenance to continue. There is no statutory requirement to give decisive weight to cohabitation and should not be equated with remarriage without legislative sanction. 
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Statutory factors

  • Fleming v Fleming- CoA rejected the argument that marriage should be equated with cohabitation for the purposes of bringing PPO to an end. 

New living arrangements will be taken into consideration. What if the husband or person making PPO has remarried or is living with another woman? Court cannot require new wife to contribute. If the new partner is the only one with an income, the husband cannot be ordered to pay.

  • Macey v Macey- the court had erred by taking into account the new wife's income as part of the available fund for PPO. It may be considered the new husband needs less money to support his new family and this can be taken into consideration.

Increased needs- 

  • S v S- husband was living with new partner and children, and so had greater needs than wife. 

New partner- HJ v HJ + Norris v Norris- wrong in principle for wife to lose out because H has left her for someone else. 

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Statutory factors

Financial needs, obligations and responsibilities- s25(2)(b)- court has to take account of these. Consideration will firstly be housing. Where there is sufficient means to go beyond housing for children and primary care taker, the courts concern will be for the absent parents rehousing. If by the time the court makes an order, one of the parties has remarried and undertaken financial responsibility for a new spouse or children, or cohabiting, this will be taken into account. However they will not allow claims for a lavish lifestyle as needs claims. 

The standard of living before the breakdown of the marriage- s25(2)(c)- in cases of average means it will be inevitable that standard of living will drop a bit. In the case of a wealthy spouse, there will be a greater scope for standard of living to change the outcome. 

  • S v S- allowances to keep horses
  • A v A- wealthy man who compelled them to live frugally. She was entitled to standard of living as if they had been living reasonably.
  • AR v AR- £3.2m to ensure financial security and allow for discretionary spending
  • McCartnery v Mills- pay nanny's salary.
  • Preston v Preston- wife of millionaire and 23 years marriage is entitled to expect a very high standard of living which may include a house at the top end of the market, a second home...
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Statutory factors

  • and high spending power.
  • Miller- 3 year marriage but got £5m. 1/6th of his worth. He had made all his money throughout the marriage and had higher standard of living. Said that this is a consideration but there is not a legitimate expectation that a particular standard of living be maintained. 

The age of each party and the duration of marriage- s25(2)(d)- 

  • G v G- length of marriage is relevant to determining the period for which the W should continue to enjoy the lifestyle enjoyed through the marriage. With a shorter marriage there is an expectation that wife will transition to an independent life or to a lesser standard of living over time. 
  • Greenham v Greenham- although the husband would be stable when he was 70, ordering the sale of his house then was unfair given his age. 

Following the HoL in White v White and Miller McFarlane the idea of marriage as a partnership of equals applies to all marriages. 

Can pre-marital cohabitation be taken into account? M v M- regarded a 12 year marriage with 4 years cohabitation as a 16 marriage. Judge said this was now the norm. 

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Statutory factors

The courts have now more routinely regarded seamless cohabitation as akin to the duration of the marriage. 

Any physical or mental disability of either party- S25(2)(e)- in line with the clean break ideal it seems the courts will strive to achieve full and final settlement at the time of divorce. However sometimes this isnt possible. 

  • M v M- the wife had a brain tumour which reduced her life expectancy. When they divorced, after 13 years, the court held the wife's income and effect on her earning capacity meant a clean break was not appropriate. She would always require PPO. She was awarded 75% of the house sale proceeds, although this was charged back to the husband on death.
  • Re G- the wife who had MS had run up debts to pay for her childrens education and had to move into rented accomodation. The husband inherited £2.1m and awarded £460,000 saying one of the wife's health needs was to avoid stress. 
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Statutory factors

Contribution to the welfare of the family- s25(2)(f)-

Inequalities in income and earning capacity caused by wife's decision to care for children. 

  • G v G- the marriage and choices made by the parties during it may have generated needs/disadvantages in attaining and funding self sufficient independence. 
  • McFarlane- £3m in assets. 16 year marriage. Husband earned £1m a year. Wife gave up earning potential to look after children. Court order £250'000 a year until husbands retirement. It was done in a percentage of his earnings. 

Rarely used because difficult to calculate her loss of earnings- Mostyn in SA v PA. 

  • B v B- take into account future labour and economic disadvantage of caring for young child. 

Usually equality encompasses the notion of compensation. 

White v White- this factor has become much more significant since this decision. Non discrimination principle- 'whatever the division of labour chosen by husband and wife, or forced upon them by circumstance, if in their different spheres, each contributed equally to the family...

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Statutory factors

then in principle it matters not which one of them earned the money and built up the assets. There should be no favour of the money earner against the home maker and child carer.' Much stronger presumption of equality between financial and non financial contribution. 

Conduct- s25(2)(g)- will only be relevant in a minority of cases where the conduct is such that it would be inequitable to disregard it. Judges have refused to penalise adulterous spouses. Aim is to emphasise the needs of the victim, rather than to punish the perpetrator. Can be conduct after the marriage and need not be morally blameworthy. 

  • Miller McFarlane- conduct will only be material where 'one party is much more to blame than the other' through misconduct which is both 'obvious and gross.' 
  • Kyte v Kyte- the wife, knowing the husband had attempted suicide on previous occasions, complied with his request to help him commit suicide. She stood to gain from the husband's death and wanted him out the way so she could live with her new boyfriend. They reduced her award by £5000, holding this conduct was inequitable to disregard. 
  • K v K- husband sexually assaulted his wife's grandchildren. The legacy of misery he caused meant the CoA awarded him nothing from the wife's substantial funds. 
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Statutory factors

  • Jones v Jones- the husband maliciously attacked the wife, injuring her wrist so severely that he impaired her earning capacity as a nurse. They had to take his conduct into account when considering the position of the wife in the future. 
  • H v H- husband violently assaulted wife and was sent to prison so could no longer support wife and children. The wife was now psychologically vulnerable. Husband's conduct meant that the judge transferred the husbands half of the home to wife. 
  • Clark v Clark- spouse acting very badly doesnt mean they lose all provision. Wife married man 36 years older for his money. Never consummated marriage and at one point the wife required the husband to live in a caravan in the garden. She made him a virtual prisoner. CoA reduced the award by £500'000 by she still got a lump sum of £125'000. 
  • A v A- husbands violent conduct was partly because of an uncontrollable psychological state. The first award was only 10% in the home, but was increased to 33%. Although the violence could not be disregarded, particularly when it has a long term impact on the spouse, conduct was only one of the factors to consider and should not drive the court to determine that a violent husband should be deprived of all his capital. 
  • MF v SF- litigation misconduct lowered the reward as she was dragging out proceedings through groundless accusations. 
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Pension

Loss of pension- s25(2)(h)- loss of a pension through divorce often represents a real financial deprivation to a spouse. The court must have regard to 'any benefits under a pension scheme, by reason of the dissolution or annulment of the marriage, a party to the marriage will lose the chance of acquiring.' The court doesnt have to distribute it, it is just a consideration. 

Law relating to pensions is under s25B-D MCA. 

Options-

Set off- the husband pays the wife a lump sum which she can invest in her old age. This may persuade the court to give the entire beneficial interest in the house to the wife or PPO last their whole life, or lump sum. In many cases it is not possible to make present provision for a lost pension right which adequately takes account of the pensioners future entitlement and so this is only an option where the resources permit such a compensatory award.

Earmarking order- s25B-D- delayed PPO taken from husbands pension when it is paid out. Under s25B(4). When they begin to draw benefits, a portion can immediately become payable to the ex spouse. A disadvantage is the parties are tied together financially even though their marriage

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Pension

has ended. This makes the recieving spouse vulnerable if the pensioner spouse dies before them. Also vulnerable when they take their pension late or stop paying in. 

Delay- wait and decide when he retires.

Commutation (rare)- turn into a lump sum and divide between husband and wife. 

Undertaking- husband make a promise eg to take out life insurance for the wife's benefit.

Pension splitting- splits the pension into two portions (equal or unequal) to be allocated to each party who will be responsible for making their own pension arrangements. His is reduced to create hers. Not affected by remarriage. Desirable for clean break. This is the most frequent one. 

s25B the court must consider pension but is not required to make an order which compensates the other spouse through the pension- T v T- said this. Just part of conventional discretionary balancing exercise the court must do. Whether the court makes an order is just part of the discretionary powers under s25, which will be exercised to achieve a fair result. 

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Surplus non marital property

J v J- property acquired and built up during the marriage should be shared equally.  

None of the assets can be ring fenced but their source may be considered. If one party has substantial assets that are non marital property then there may be reason to depart from equality. All of the couples assets, however acquired, are in principle available for redistribution, to meet the parties need- 

  • J v J- wife obtained 46% of assets brought into the marriage by the husband because her needs justified it. 

Non marital assets includes eg assets owned by a spouse before the relationship started, assets a spouse inherits at any time, gifts to a spouse from friends and family, money earned for work done after the marriage breakdown, potentially assets produced by one spouse alone. 

G v B- the fact that assets were inherited carried some weight but the main reason that equality was departed from was the fact the grandchildren were beneficiaries of the assets and it was considered wrong to benefit the wife at the expense of them. The assets were the husbands and they came from his father...

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Surplus non marital property

The origin of the funds carried 'some but not great weight' in determining the wife's claim. The wife recieved a portion of income from the fund but none of the capital. 

Nature of the property may be important-

  • P v P- farming land had been in the husbands family for generations and was bought into the marriage in the expectation that it would be passed down to future generations. For this and the fact the sale would be devastating for the husband, fairness required an order that merely addressed the wife's needs and could be achieved without recourse to the farms assets. 
  • Robson v Robson- the court favoured the approach from Charman, in which the court applied the sharing principle to all the parties property, whatever the origin, and then adjusted (as saw fit) into the proportions in which the property is shared to take account of the fact some of the assets were non matrimonial. An ancestral castle might deserve different treatment to a farm inherited from a party's father who had acquired it in his life time, just as a valuable heirloom was of a different character to an inherited portfolio of stocks. The nature and source of the asset might be a good reason to depart from equality. Duration and length of marriage are relevant as well as standard of living. 
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Surplus non marital property

Assets surplus to needs, the party who brought them into the marriage might expect to get a bigger share- 

  • Jones v Jones- the CoA took a more structured approach in which the court simply excluded non matrimonial property from the sharing exercise (subject to needs). 
  • Dharamshi v Dharamshi- there were more assets than were required for parties basic needs, the correct approach was equality. W's contribution as a homemaker had to be ranked as highly as her contribution to the business. Giving the wife a substantial portion of the proceeds of the husbands company had been fully justified. 

Might exclude whole non marital property or just a part of it-

  • Davies v Davies- husband bought hotel into marriage but the wife's contribution had helped it flourish. The husband got 2/3rds and the wife got 1/3rd. 

Can matrimonial property become matrimonial property?

  • Miller- Hale said that in lengthy marriages 'the source of the assets can be taken into account but its importance will diminish over time.' 
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Surplus non marital property

Length of the marriage-  N v N- the longer the marriage, the less non matrimonial property there is. 

Extent of intermingling of assets- K v L- Lord Wilson rejected the argument that non matrimonial assets would always be shared after a long marriage. In this case neither contributed to the income and both contributed equally to family life during the 21 years together. The wife had considerable shares, which she kept in her sole name, and separate from the matrimonial assets. The length of the marriage did not alter this as it was clear the wife did not regard them as matrimonial property. Court will not just look at the length of the marriage, they'll also look at intermingled-ness. They lived modestly so she got to keep most. 

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Assets produced by one spouse alone?

Assets not husbands work alone- still marital property-

Contribution to his work- R v R- the wife had made substantial contribution to the husbands business. 

Contributions to the welfare of the family (not wealth)-

White v White- 'whatever the division of the labour chosen by the husband and wife, or forced upon them by circumstance, fairness requires that this should not prejudice or advantage any party. If in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money, and built up the assets. There should be no bias in favour of the money earner and against the home maker and the child carer.' 

He may get a bigger share of some of the marital property under the 'genius principle'. They must be exceptional. This will be claimed on the basis that their contribution to the family welfare was greater. 

  • Lambert v Lambert- CoA said it was unacceptable to place higher value on contribution of the breadwinner over the home maker. Said genius would only happen in exceptional case. 
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Assets produced by one spouse alone?

  • Miller- HoL approved Lambert and said the ethos of White must be followed. Financial and domestic contributions should be considered equally. Special contribution will only be successfully argued in an exceptional case. Contribution would need to be such that it would be inequitable to disregard it. 
  • Charman v Charman- that approach was followed and said need to prove an additional quality, whether by genius in business or something else. In this case this was proven and husband was awarded 63% of £130m assets he had built up. 
  • Sorrell v Sorrell- the judge considered that the husband's contribution was capable of coming within the concept of special contribution. This was supported by the fact the husband had achieved in his business career what few others had done and he was regarded within his field and wider business community as one of the most exceptional and talented businessmen. His genius accounted for the vast majority of the family's assets and deserved to be recognised in 60/40 split, as ignoring it would be unfair. 

Assets that are husbands work alone- non marital property- 

  • S v AG- winnings from a lottery ticket bought alone without telling spouse 
  • S v S- properties owned before marriage and not dealt with during
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Assets produced by one spouse alone?

  • Miller v Miller- husbands business to which the wife made no contribution? (Hale)
  • Jones v Jones- money earned after breakdown- wife cant argue that earning capacity is an asset. 

Poverty- 

Parties on benefits are rarely ordered to make payments. A nominal order can be made which can be varied if situation improves. 

Parties in low income employment not order to pay so much that they would only be left with a benefits level income- especially where corresponding benefit to ex would be small. 

Ashley v Blackman- man on £7000 pa. The court will not impoverish you.

Unwise to order lump sum to ex spouse on benefits- any capital over £16'000 will remove entitlement to benefits and amounts of £6000-£16000 will reduce. Could use a periodical payments order instead. 

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Time limit for making an application?

Wyatt v Vince- highly unusual case where the wife made an application for financial provision 27 years after they separated and 18 years after they divorced. For a number of years H lived as a traveller and had no position to make maintenance payments for the children. H then became a millionaire through his business. The court said he was a remarkable man. W was still on benefits and applied for a lump sum of £1.9m. Her claim has been allowed by the SC meaning it will go back to the High Court to be considered. They allowed it because under s25(1)MCA you have to consider all circumstances, not chance of success. An action only has no reasonable ground if remarried or has already been a final determination. Said probably wont be able to secure financial support based on needs. 

Good reminder to spouses to finalise financial orders at the time of the divorce. 

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