Family Finance Notes

Homelessness (Matrimonial Home)

• Registered matrimonial home right immediately (s.30 FLA 1996)- home right notice no need consent- right for spouses, but only applicable on former or current matrimonial home (only one)

• S.24 Property adjustment orders e.g. apply out for outright transfer or Mesher

• Joint tenants- no need to register rights, automatic right (advise severing tenancy due to survivorship)

• Prevent getting decree absolute before sorting out financial

• Registration- Do index map search: Unreg: Class F land charge/ Reg land: Agreed notice

Sale of business

• Injunction order (s.37.2(a) MCA)-: show other party about to make decision to defeat financial claims

• Make application of financial relief (proceedings started when ticked box in divorce petition)

• Apply for an injunction to prevent sale BUT must have started proceedings under MCA

  • About to make

  • A disposition of property

  • Intention of defeating the claim

  • Rebuttable presumption that the other party intends to jeopardise her claims

Sale of Rental Home

• S.37.2(b) apply to situation where sale already happen- to set aside and undo it

• Apply for an injunction to set aside sale under s.37.2(b) MCA BUT must have started proceedings under MCA

  • Is it a reviewable transaction (not to a bona fide purchaser with valuable consideration)?

  • Intention of defeating the claim

  • Presumption of malevolent intended sale with last 3 years and will jeopardise the claim within financial proceedings

Action:

• Register s.30 right

• Petition for divorce (tick all financial orders in prayer for her and children)

• Activate application for financial orders under s23 and 24 by filing Form A

• Consider applying for s.37 injunctions or seek undertaking from other party

CMS calculation -No clean break between child and parent

• Gross annual income

• Deduct pension

• Weekly gross income

• Other children?

• Basic rate for e.g. two children (apply 16% rate up to GBP800 and 12% rate to balance)

• Do the calculation

• Shared care?

GBP50,000 p.a.- GBP961.5 per week

GBP800 x 16%= GBP128

GBP161.5 x 12%= GBP19.38

128+19.38= 147.38

Shared Care: 2 nights per week: 147.38 x 2/7= 42.1-> 147.38- 42.1= 105.28

How big is the pie? –Capital and Income (Net equity)

Yardstick= GBP80,000

s.25.1(a)

Yardstick of Equality (capital assets only)= Half portion of net assets

Possible options for the house?

• Sale and split

• Outright transfer

• Deferred trust eg Mesher- Court will decide % share if parties can’t agree

Income

(Ignores voluntary maintenance)

Effect of H’s offer on capital

• H has GBP100,000 (60,000 + 25,000 + 15,000)= 62.5% capital of the GBP160,000 total pie

• W has GBP60,000= 37.5% capital

• (After sale costs)

Effect of H’s offer on income

• No maintenance

• H has GBP548.77 per week

• W has GBP299.18 per week

• Where would W and children live?

• How would they manage?

Why is the offer not acceptable?

• S.25(1)

• S.25(a)

• S.25(2)

  • Income

  • Needs

  • Standard of life

  • Disability

  • Contributions

  • Conduct

  • Case of proceedings

• S.25(3) Child

  • Financial needs

  • Income

  • Disability

  • Education

  • Other consideration

• Clean break

Fairness?

CHILDREN are first consideration *get everyone housed

Counter-offer

• Apply the s.25 factors using the s.25 approach

• Formulate a counter offer:

  • Suggestion for the house

    • Sale and split

    • Transfer (Transfer house and H keeps all other capital)

    • Mesher (Triggers ie. death, remarriage, child turn 18/ finish full time education- Sale and split to attain fairness)

  • Percentage of the capital pie

  • Maintenance/ mortgage (Spouse maintenance until able to get back to work field)

  • Fairness

W’s potential counter offer

• Children’s needs are the first consideration

• Mesher trust with at least 2/3rds equity to W

  • W has 80/120k when Mesher ends= 50% pie

  • H has 40k now (i.e. 25k + 15k) and 40k when Mesher ends= 50% pie

• Term maintenance of at least GBP200 per week (need instructions on period necessary or retaining)

• Fair? And each party to bear own interests

S25 Approach

1. SET OUT S25(1) principles

   • Must have a/c of all circumstances

   • Children are the first consideration (APPLY)

2. SET OUT S25A clean break principle

3. STATE approximate figure for Yardstick of Equality

4. APPLY your fact scenario to EACH of the S25(2) factors in order

   • For example: Resources: including income, housing, capital, earning capacity etc.

5. STATE whether one or more of the factors indicates that there is a reason to depart from the Yardstick of Equality to produce a fair result

6. CONCLUDE- how you would redistribute capital and income to produce a fair result on the facts

For example:

W should have X capital and Y income (is there need for spousal maintenance necessary? If so, for how long?)

H should have A capital and B income (again consider if he need spousal maintenance etc)

1. Pension

2. Have you achieved Yardstick of Equality? If not, can you justify it?

Income

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