The Discretion Of The Court Notes

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...

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