Family Law Series Part 1: What factors does the Court take into account when making Financial Orders upon Divorce?
Clients regularly will ask and seek advice as to how the assets of the parties’ marriage will be divided. When deciding what Orders to make, the Court has a very wide discretion. Whilst the starting point is an equal division of the assets, the courts can depart from equality, by taking into account a number of factors. By Section 25 of the Matrimonial Causes Act 1973, all the circumstances of the particular case must be taken into account and first consideration must be given to the welfare of any minor child of the family who has not attained the age of 18 years.
Section 25 directs the Court to have regards to the following matters:
- The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future (including any benefits under a pension scheme which a party to the marriage has or is likely to have), including in the case of earning capacity, any increase in that capacity which it would, in the opinion of the Court be reasonable to expect a party to a marriage to take steps to acquire;
- The financial needs, obligation and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- The standard of living enjoyed by the family before the breakdown of the marriage;
- The age of each party to the marriage and the duration of the marriage;
- Any physical or mental disability of either of the parties to the marriage;
- The contributions which each of the parties has made or is likely in the foreseeable future to make, to the welfare of the family including any contribution by looking after the home or caring for the family;
- The conduct of each of the parties if that conduct is such that it would in the opinion of the Court be inequitable to disregard it.
- In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit (for example, a pension) which, by reason of a dissolution or annulment of the marriage, that party will lose the chance of acquiring.
Therefore, as can be seen there are many factors that the Court needs to consider, and each case will need to be assessed having considered the parties financial resources in order to advise clients.