#1855 - The Discretion Of The Court - Family Law

The discretion of the court

The test for the amount of ancillary relief provision

• Is s.25 MCA 1973 viewed through the lens of fairness

  • Ferguson: The checklist this provision gives is not a rule to be followed, but only guided discretion –

    • The court needs to look at the list, but don’t need to give reasons why it follows some of the provisions and not others

What factors does the court need to take into account?

MCA 1973 s.25(1):

• All the circumstances of the case

  • (1)It shall be the duty of the court in deciding whether to exercise its powers ... and, if so, in what manner,

    • to have regard to all the circumstances of the case...

• The Welfare of Children?

  • MCA 1973 s.25:

    • (1)It shall be the duty of the court in deciding whether to exercise its powers...

      • first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.

  • But this doesn’t mean their needs are “paramount”:

    • Suter v Suter and Jones [1987]: A 14 year old marriage producing two children under 18 ended in divorce on the fact of W’s adultery. W does not live with her new partner, but he spends evenings and weekends with her. H has remarried. W applies for financial provision from H. The High Court and CoA gave W the whole beneficial interest in the house and periodic payments for the children, which CoA said were necessary for children’s welfare needs.

      • Lord Cumming Bruce:

        • There is a difference between first and paramount

        • That difference coupled with W’s conduct, means that unjust that H pay payments to W.

          • Periodic payments therefore reduced to 1 instead – this allows the court to vary it later if W’s circumstances change.

    • Ferguson: Just saying they will be considered first means that this is not the stopping point of consideration – even if children’s needs are not fully met.

  • Factors to consider:

    • S.25(3)As regards the exercise of the powers of the court ...in relation to a child of the family, the court shall in particular have regard to —

      • (a)the financial needs of the child;

      • (b)the income, earning capacity (if any), property and other financial resources of the child;

      • (c)any physical or mental disability of the child;

      • (d)the manner in which he was being and in which the parties to the marriage expected him to be educated or trained;

      • (e)the considerations mentioned in relation to the parties to the marriage in paragraphs (a), (b), (c) and (e) of subsection (2) above.

  • Herring: Child’s interests have been shown to be pertinent in the following ways:

    • 1. Baroness Hale in Miller; McFarlane

      • Promoting child welfare is to ensure that primary carer is provided for,

        • as security and stability of children depends in large part upon security and stability of primary carers

    • 2. Child welfare relevant towards the matrimonial home

      • B v B – Connell J justified giving H no money to buy a new home as otherwise his child would not have a secure home.

    • 3. Child’s interests generally relevant in deciding whether carer should go out to work to support him – generally not where child is very young.

MCA 1973 s.25(2)

• (a)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 in the case of earning capacity any increase in that capacity ...in the opinion of the court [would] be reasonable to expect a party ... to take steps to acquire;

  • Discussion

    • The court cannot take into account the resources of a third party under this head

      • But if W has shacked up with a new rich boyfriend, clearly her needs are not going to be as high than if she had not

    • “Other resources” includes income from discretionary trusts, personal injury damages and even inheritance

      • Although it will be rare for the court to assume that one spouse will inherit in the future

      • And that property was inherited during the marriage is taken into account on assessing where it would be fair to allocate it.

    • The non-working spouse might be expected to find work if they are young enough, although it will be rare for the court to force an older wife who has spent her life on childcare to find a job.

• (b)the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

  • The courts have interpreted “needs” loosely – the needs of the poor are not the same as those of the rich

    • So “reasonable requirements” tends to be used when describing the rich W who “needs” three houses

  • Housing

    • Cordle v Cordle

      • Thorpe LJ:

        • Nothing is more awful than homelessness

    • B v B (Mesher Order) [2003]: H and W were married for only one year, in which time they had a daughter, but then separated.

      • Munby J

        • As to the denial of the mesher order on the house, this would be made because W had little prospect of generating the necessary capital whereas H was likely to do so.

• (c)the standard of living enjoyed by the family before the breakdown of the marriage;

  • A v A (Financial Provisions) [1998]: W lived a frugal life despite being extremely wealthy. Normally, provision was decided on based on the expenditure of the spouse during the relationship.

    • Held

      • W’s reasonable requirements can be calculated

        • by asking what standard of life she might have expected to enjoy being married to a man of that wealth.

  • Miller v Miller [2006]:

    • First instance

      • Weight must be placed on W’s expectations brought about by comments from the husband

    • HoL:

      • Hopes and expectations cannot be taken into account, although standard of living during the marriage can be.

• (d)the age of each party to the marriage and the duration of the marriage;

  • Short marriages are less likely to lead to big awards – unless kids are involved

  • May also look beyond the marriage period itself – also cohabitation

    • Miller; McFarlane

      • Baroness Hale:

        • When considering whether property was acquired during the marriage,

          • a court should “probably” include property acquired during pre-marital cohabitation or engagement

• (e)any physical or mental disability of either of the parties to the marriage;

  • Note that this is a non-relationship generated problem which the court seeks to take into account.

• (f)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 contributions need not be financial

    • White v White

      • Lord Nicholls

        • Whatever the division of labour chosen by the husband and wife, or forced by circumstances

          • fairness requires that this should not prejudice or advantage either party

        • If, in their different spheres, each contributed equally to the family, it matter not which earned the money to build up the assets

          • There should be no bias in favour of the money earner and against the home-maker and child-carer

  • Chapman v Chapman

    • Potter P:

      • Even disadvantage of the type to which reference was made in the speeches in Miller , i.e. that stemming from decisions taken during the marriage,

        • had been held in this court to be relevant before it became the driver for a principle of compensation

• (g)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;

  • We’re looking at really bad conduct here – of the kind which would cause an ordinary person to say “surely that person is not going to get any money”. Otherwise don’t take it into account (Miller; McFarlane)

    • K v L [2010]: H married W, who had children by her former marriage. H then abused W’s grandchildren, for which he was imprisoned. W divorced him, and paid him 100,000 out of her 4m wealth as part of a court order for his “needs” when he was released.

      • Ward LJ

        • It is important to note that H’s grave sexual misconduct within the family was far from the only factor which generated so small an award for him.

          • But the judge added that even if he was wrong in these factors, the case remained one in which

            • it would not be fair to require W to make provision for H’s economic needs.

        • On any view H’s treatment of W’s family was so appalling to have entitled the judge to reach what,

          • had there not been other factors listed, might otherwise have been an appealable determination.

  • Also take into account “good” conduct

    • E.g. A v A [1995], where H gave up work and made no effort to find a job, while W undertook a degree course and started a new career –

      • court thought good conduct of W compared with bad conduct of H should be taken into account in calculating the award.

An overarching Principle? The Yardstick of Equality and the Difficulties it brings

• Bear in mind that as a non-hierarchical list, technically there should be no presumption or starting point to a particular factor.

The first point – “reasonable requirements”

• Trying to clarify “reasonable requirements”

  • Dart v Dart – 15 year marriage, lived together in UK for two years as tax exiles. D had a family fortune via foam cups. Mr D worth 400-800m. He declares that he can pay any order. Mrs D argues that the case should be heard in Michigan, which has a less discretionary regime.

    • Thorpe LJ:

      • It’s implicit that reasonable requirements are more extensive than needs

        • There must be an objective appraisal of what the applicant subjectively requires that is not unreasonable

The move to “fairness”

• White v White [2006]: 30 year marriage, running...