Memo a period so specified.[4] Given that Phoebe is

Memo

To: Bill
Jenkins

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Subject: Phoebe
Walters – Divorce

A suitable financial settlement can
only be achieved if Phoebe complies with the requirements from the Matrimonial
Causes Act (MCA). S23 MCA, the powers of the court must be considered; this
includes the different orders the court may grant.1

Periodical payments: for a
specified time. The order may last indefinitely, for a definite period, or
until a specified event. If the recipient remarries the order automatically
terminates. Phoebe may want to consider this as she is currently unemployed and
has two children to take care off.2

Lump sum payment(s) s.23 (3)(c)) – a lump sum can generate
income from interest. Lump sum orders unaffected by subsequent marriage/CP or
death of the recipient. 3

 

Phoebe needs to consider property adjustment orders s24 MCA;
it can be made in favour of a party to the marriage. It includes the following:
transfer of property, settlement of property, variation of marriage or CP
settlement, order extinguishing or reducing a party’s interest in a marriage or
CP settlement.

 

S24A MCA order for the sale of property may be considered,
it could be so that it shall not take effect until the occurrence of an event
specified by the court or the expiration of a period so specified.4

 

Given that Phoebe is living in the house with the kids at
the moment, it is not likely that she would want the house to be sold, so she
may wish to consider a Mesher/Martin order instead. Mesher order comes from
Mesher v Mesher Where the financial situations of a husband and wife were
evenly balanced, the fairest ancillary relief order in relation to the former
matrimonial home was to allow the wife and child to remain in the property
where it would be held in equal shares on trust for sale until the child
reached a specified age or with leave of the court.5 There
are some criteria that need to be met in order for this to be suitable.6

 

 

Martin v Martin – A
Martin order triggers sale on the occurrence of some event in the life of the
spouse who will occupy the property.7 Phoebe
may wish to apply for a Martin order, as she would be able to remain in the
property until the children turn 18 or finish full time education or she
re-marries.

 

Factors under s25 MCA:

 

Income and earning capacity of both parties needs to be
considered. Robert is currently the sole earner, as phoebe is not currently
working she has no earning capacity.

 

The financial
needs, obligations and responsibilities of the parties must also be considered,
this links to the standard of living enjoyed before the divorce.8
The standard of living goes back to the beginning of the marriage, so the
position both Phoebe and Robert were in.

 

The age of each party (as this could also have an impact on
any future earning capacity). Additionally, any physical or mental disability,
contributions made to the welfare of the family, conduct and priority to be
given to the welfare of the children must be considered.9

 

Phoebe used to be a journalist, this could be considered a
specialist job role and due to her age, it may now be a lot more difficult for
her to fulfil the same role again. This would mean her earning capacity has
significantly decreased. McEwen v McEwen would be applied her, as a result of
the above; Phoebe would need some dependence for a while.10
This is why she may wish to peruse periodical payments. The amount could be
reduced when she starts employment again.

 

 

Financial assets:

White v White held that although there had been no statutory
intention to create a presumption of equal division, equality should not be
departed from unless there was good reason for doing so.11
So in regards to Phoebe and Robert’s financial assets we need to consider which
assets are considered matrimonial and non-matrimonial property. As,
non-matrimonial property is not usually in the pot for sharing.12

 

Miller v Miller/McFarlane v
McFarlane highlighted the three principles that should guide the
court when making a financial award following the breakdown of a marriage were
need, compensation and sharing. There could not be a hard and fast rule about
whether the court should start with equal sharing and then depart if need, or
compensation supplied a reason for doing so, or whether the court should start
with need and compensation and then share the balance.13

 

Assets:

Include the matrimonial home, the car and Robert’s business.

In regards to the home it could be considered matrimonial property so if/when
sold both parties would acquire an interest in it.

 

The car it would either be retained by the possessor or be
transferred to the other party. In case, Robert retains it, the court shall
direct him to pay an equal amount of proportionate shall be given to phoebe by
him, or it may be sold and the proceeds of the sale may be divided equally
amongst them. This is because even though it is in Robert’s sole name, if both
parties have enjoyed it, it could then be considered matrimonial property
(Robson v Robson).14
However, if it has been kept completely separate for the parties not to touch,
then it would remain non-matrimonial property (K v L).15
As the car was shared Phoebe would now also be entitled to a share.

 

 

Mitigation of loss:

The court has to take into consideration any increase in the
parties’ earning capacity which it would be reasonable to expect a party to the
marriage to take steps to acquire – SRJ
v DWJ.16
This is whether Roberts’s business would have an impact of the financial
settlement. (Explained later in document)

 

Statutory Factors:

 

First
Consideration: The Welfare of the Children 25(1) MCA Baroness Hale in Miller; McFarlane: giving priority to the children’s welfare should
also involve ensuring that their primary carer is properly provided for.17
This is why periodical payments are more relevant for Phoebe.

 

Further Factors to be
taken into account

S25(2) MCA (a) the
income, earning capacity, property and other financial resources which the
parties are have or are likely to have in the foreseeable future.18 McCartney– the courts interpret ‘need’ by reference to the
standard of living enjoyed by the parties.19

 

(b) the financial needs, obligations and responsibilities
which each party has or is likely to have in the foreseeable future. Miller; McFarlane20

 

The court
won’t usually make an order that will require reliance on the spouse’s new
partner’s financial resources, although the new partner can be expected to
contribute to the spouse’s new household.

Commonly
orders state that periodical payments will cease if the recipient cohabits with
a third party for 6 months. If no such term was included the payer wishing to seek
a reduction must apply for a variation. So if Phoebe moves in with her new
partner this would need to be considered.

 

(f) The contributions that each party has made or is likely
to make. Lambert – In assessing ancillary relief, Miller: Yardstick
or equality, it would be unfair to discriminate on homemaker, as contributions
made through raising children etc. therefore, Phoebe’s contributions can come
from the time she has spent raising the children.21

 

In regards to
Robert’s business could be considered out the realm of the matrimonial pot, due
to extraordinary contribution. In Charman v Charman, if there is an
extraordinary contribution, there would be an exception to the general rule and
the asset would not have to be shared.22
In this case Robert created the business on his own and the majority of the
money went back into the business, so was not enjoyed by both parties within
the marriage. Therefore, Phoebe would not be entitled to a share from this.

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography:

 

Books:

 

Herring
J, Family Law (8th edn,
Pearson 2017)

Lowe S, Douglas G Bromley’s Family Law (11th Ed  Oxford University Press 2015)

 

Statute:

Matrimonial Causes Act 1973

Cases:

Charman v Charman  2007 EWCA Civ 503

K v L 2011 EWCA Civ 550

Martin v Martin 1953 2 QB 286

McEwen v McEwen  1946 3 DLR 494

Mesher v Mesher 1980 1 ALL ER 126

Miller v
Miller/McFarlane v McFarlane 2000 UKHL 54

Robson v Robson 2006 UKHL 24

White v White

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