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Justifications For Financial Relief Notes

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Why the system has no justification Ferguson: We've lost touch with the old ideas

Ancillary relief used to be about provision for wife during the marriage o When the couple married, the wife acquired a right to support during the marriage
? Justified obligation on husband for the wife - could choose to give cash, land, food etc, but had to support her
? Obligation attached to marriage and was during marriage

Current regime only kicks in when marriage ended o The obligation to support came from coverture - joining of legal personalities
? All assets of wife became husband's, so needed obligation to support
? However, wife could not enforce this obligation even though it existed

But if she had need, she could operate the agency of necessity by taking things, and he would be billed for it. o Some statutes of this remain e.g. s.2 Domestic Proceedings and Magistrates Court Act 1978 (periodic payments lump sum orders under PS1000) - now obsolete.

We then extended the obligation to support after relationship breakdown if she was faultless o MCA 1857 = allows divorce on fault
? Only if W is innocent that entitled to divorce on limited grounds
? Lord Penzance:

Without this, H will triumph over sacred permanence of marriage will be complete

To him, marriage will have been a temporary arrangement o To such a man, can still say that must support woman first chosen and discarded o Injury against her, not for her own sake

So far, so good. But then we extend W financial relief if she is at least partly at fault o Lady's friend in Parliament was able to try and help her neogitate in divorce for some kind of relief
? Ferguson: Guilty wife getting something is a problem if marriage is mutual obligation - she caused it to breakdown

The death knell - No fault divorce o 1969-1984
? Can decide to end legal status as no fault as matter of choice
? But regime ties together financially

Going to respect legal status change, but not the financial consequences.. going to impose them instead o Can see this in different formulation
? S.25 = obligation on the court was to place the parties as far as possible in situation as if marriage has not broken down

But this didn't make sense b/c while we got rid of the dodgy justification (that we could give relief even when one party was at fault) o The checklist was left to be applied - with no new justification put in the place of the old justification.
? Law com = somewhat difficult to have regime with no basis at all

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