The Gazette 1985

APRIL 1985

GAZETTE

more than an eye to the possibility of the wife working. A young wife with a business degree and with work experience will be in a different position to a young wife with no qualifications or experience and three young children. Similarly, an older woman who has not worked through the twenty- five years of her married life has a much lower potential earning capacity than a woman of the same age who has gone out to work throughout her married life. One guideline, but it is only a guideline, is that the wife's income should be brought up to one-third of the joint incomes. If the Court feels that, having considered all the circumstances, maintenance should be awarded to a spouse, the Order will be made by way of periodical payments. (ii) (b) Maintenance for the Children Either parent can be ordered to pay maintenance to the children of the marriage. Such Orders will again be made having regard to all the circumstances, especially the needs of the children. The Order will normally be for maintenance to be paid to the children until their majority or until they have finished full-time education. Children are not entitled, in England, to capital provision in the same way as a wife, even under the said 1984 Act, save and except small lump sum payments which are really in lieu of maintenance. The Court has power to order maintenance pending suit. This is available to meet the immediate financial needs of a spouse and/or children during the period from the issue of the petition to the final Orders in respect of maintenance. The details of each party's finances and the capital and income attributable to each or both spouses are brought to the Court's attention by way of affidavits of means and discovery. It is open to each party to challenge the affidavit of the other by means of further affidavits and / or questionnaires. The assistance of such persons as accountants, stockbrokers, valuers and so forth can often be required. Once a divorce is finalised the obligations imposed by marriage cease and, accordingly, when considering finance it is necessary to consider the wider effect of the end of the legal relationship, e.g. the loss of pension rights to a woman as a result of her ceasing to be the wife of the man. When maintenance is being paid by way of periodical payments, on the death of the paying party the periodical payments will cease and it may, therefore, be necessary, especially if the paying spouse is much older than the other, to make arrangements to insure the paying spouse's title to compensate for loss of pension rights or to secure maintenance on capital. Over the last few years, a principle has emerged which is known as the "clean break" principle. Put at its simplest, this means that where possible the divorce should be arranged as fairly as possible, giving both parties a fair division of the matrimonial property, but also in order to set each on their own feet and enable them to lead individual lives without interfering with the other. It is, perhaps, for this reason that the Periodical Payments Order is now less popular, unless there are good reasons, such as the existence of children, which require

Financial Aspects The question of who gets what is the aspect of divorce which tends to take up most of the lawyer's time. Essen- tially, it divides into: (i) the division of the matrimonial capital, and (ii) maintenance for (a) the spouse, and, (b) the children. (i) Capital In very many cases the only capital will be the matrimonial home. The Court will be anxious to ensure that if there are any children involved they will be adequately housed until their majority; subject to that priority, the aim is to ensure that both parties have a roof over their heads. In deciding on the division of capital, the Court will look at all the circumstances of the marriage, and will take into account anything relevant, including the length of the marriage, the age of the parties, the parties' resources, the parties' needs, the parties' earning capacities, what property each party brought to the marriage and what each has contributed to the marriage. There is a wide judicial discretion and each case turns on its own facts, so that, as Lord Justice Ormrod said in the case of Martin -v- Martin [1977] 3 WLR 101, "It is the essence of such a discretionary situation that the Court should preserve, so far as it can, the utmost elasticity to deal with each case on its own facts. Therefore, it is a matter of trial and error and imagination on the part of those advising clients. Equally, it means that decisions of this Court can never be better than guidelines. They are not precedents in the strict sense of the word." But the experienced practitioner does have an insight as to how the judicial discretion is likely to be exercised. When the Court is making an Order in respect of capital, it is in effect either ordering one spouse to transfer his property interests to the other (and such Order is known as a Property Adjustment Order), or ordering a lump sum payment. (ii) (a) Maintenance for the Spouse Here again, the wide judicial discretion as described by Lord Justice Ormrod applies, and the Court in particular takes into account much the same criteria as above and which are listed in Section 25 of the Matrimonial Causes Act 1973, which has been amended by Section 3 of the Matrimonial and Family Proceedings Act 1984. They include the income earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have, the financial needs and obligations and responsibilities, standard of living enjoyed by the family before the breakdown of the marriage, the age of each party to the marriage and its duration, health, contribution and 'conduct' where it would be equitable, in the opinion of the Court, to disregard it. The two new priorities, however, given the 1984 Family Proceedings Act are that the Court should have, firstly, consideration to the welfare of the children and, secondly, that the Court should have

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