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In today’s society, marriages are facingchallenges such as divorce and separation. A couple that wishes to gotheir separate ways is allowed by the law to do so. The partners candecide to have a mediator to settle their issues or go into courtwhere the judge gets to make orders regarding the financialprovision, the welfare of children, and the property owned together.Various laws are applied in such circumstances such as the Family LawAct and the Matrimonial Causes Act.1However, some clients may decide to seek legal expertise beforedetermining the approach they shall adopt. The paper aims to advisePaula on the likely financial orders that a court will make and thefactors they will take into consideration.
One of the possible financial decisions that thejudge is likely to make involves the legal services for theproceedings. Section 22ZA of the Matrimonial Causes Act 1973 providesthat the court may order one party to the marriage to pay to theapplicant a specified amount that shall enable them to get legalservices needed for the divorce proceedings.2It implies that if Paula cannot afford a lawyer for the divorcehearings, she can make an application to the court that orders Jamesto pay for her attorney. When issuing such an order, the judgeconsiders factors such as the financial position of the applicant.The investigation allows the court to determine if one wouldreasonably afford the required legal services for the proceedings ornot. The applicant must also prove to the court that he/she cannotmanage to get a loan to pay for the services. However, the partybenefiting needs to understand that that the court may at any timedefer the payment for the legal services if it realizes that there isa change of circumstances since the order was made. It means that ifPaula’s financial position improves (by successfully winning thecontest against her mother’s will) the court can order James tostop paying for her legal services and let her do it on her own.
Another financial order that the court may makeregards maintenance payments. For instance, Paula is planning to haveJames pay for her expenses and those of her two children. Under suchcircumstances, the judge can order either party to the marriage tomake such periodical payments to the other person as per section 2(1a) of the Domestic Proceedings and Magistrates’ Courts Act 1978.3The factors that they shall take into consideration when issuing suchan order are as provided in Domestic Proceedings and Magistrates’Courts Act 1978 S3(2).4They include the standard of living of the couple before the marriageended. It also considers the income of both partners and theirearning capacity. The court also analyses other financial resourcesthat the parties have or is likely to possess in the future.Additionally, they also consider the age of each party to themarriage and the duration they have been married. The court alsodetermines if they had any form of physical or mental disability,their contributions to the welfare of the family and their conduct.All these factors help the judge to determine the amount one party isgoing to give to the other as maintenance payments. Paula needs tounderstand that she can only receive the financial support from Jamesif she proves to the court that she has no source of income.
Besides the maintenance payments for the formerspouse, the court can issue a financial order that requires the otherparty to pay for child maintenance as per section 2(1) (c) of theDomestic Proceedings and Magistrates’ Courts Act 1978.5A couple that has a child have a responsibility of meeting its basicneeds until they reach adulthood where they are capable of lookingafter themselves. Some of the factors that the court takes intoconsideration when making such an order are outlined in section 3 (3)of the Domestic Proceedings and Magistrates’ Courts Act 1978.6They include the financial needs of the child. For example,Heather’s requirements might be high considering that she is adisabled individual who requires extra attention and special servicesas compared to other normal children. Another factor they deem is theincome, earning capacity, property and the financial resources of thechild. The court also determines if they have any physical or mentaldisability and the way in which he/she was being and expected to beeducated or trained. The elements help the judge to establish howmuch deposit the other party should be making periodically as part oftheir child’s maintenance.
The current legislation in England and Wales alsoconsiders an individual to be a parent to a child who is not of thefamily if they lived together and had assumed parentalresponsibilities.7In this case, the court can issue a financial order requiring Jamesto pay for child maintenance for Lina as well since the couple livedin London where they are governed by the England and Waleslegislation. Section 3(4) of the Domestic Proceedings andMagistrates’ Courts Act 1978 provides that the court can considerfactors such as whether any person was liable for the maintenance ofthe child who is not of the party that is divorcing.8If another individual was catering for the child’s needs, itimplies that the financial order may not be issued. Another elementthat the judge may focus on is whether the other party had assumedany responsibilities as the parent to the child and the length oftime. They also take into consideration whether when the person wasaware that the child was not his/her own when discharging suchduties. In Paula’s case, it is very likely that the court shallissue the financial order for in favour of the child of the familywho is not of both parties. The financial calculations for childmaintenance of both kids can be done as per the Child SupportMaintenance Calculation Regulations 2012 one year after the courtapproves the maintenance figure agreed by both parents.9
As opposed to the periodical payments, the courthas the power to make an order for the financial provision thatrequires the other party to pay the applicant a lump sum as persection 2 (1) (b) of the Domestic Proceedings and Magistrates’Courts Act 1978.10The English courts usually give a lump sum order where they believethat it shall enable the couple to have a clean break off theirmarriage. The financial order is issued as an adjustment to theassets or where maintenance is capitalized or in both situations. However, it is significant to note that the amount released in theform of a lump sum is less than the monthly maintenance fee that theother party could be paying in instalments. The figure of the amountto be issued in a lump sum is also calculated in a particular manner.Section 2(3) of the Domestic Proceedings and Magistrates’ CourtsAct 1978 states that any accrued amount paid under the section shallnot be more than £500 or such largernumbers, as Lord Chancellor may by order change the figure from timeto time.11Therefore, Paula needs to understand the differences between the twomodes of payments so that she can plan on how to properly utilize herfinancial resources, especially when the court issues the lump sumorder.
Another ruling that the judge is likely to giveinvolves the sale of property. The English court has the power toorder a house or other assets to be sold, and the proceeds from thesale get to be divided in a defined way among the parties. However,the decision of sale of the property is reached by consideringfactors such as the welfare of the child of the family. The financialposition of the couple is also analysed and the duration of themarriage. However, since in Paula’s case the multi-million-poundhouse is in James name, the court is likely to issue an order thatdelays the sale, for instance, where the house can only be sold afterthe children are grown up. The Children and Families Act 2014 definesthe settlement of property that ensures that a child always has ahome.12Additionally, the court can also protect the applicant’s interestby registering the property with the Land Registry to prevent itssale in future or any other charges without the person’s knowledge.
In conclusion, during court proceedings, thefinancial orders that the judge is likely to give include paying thelegal services for the applicant, periodical or lump sum payments forthe other party and child maintenance, and restrictions regarding thesale of property. Some of the factors the judge takes intoconsideration when making the decisions revolve around the financialposition of the parties and the children.
Domestic Proceedings and Magistrates’ Courts Act1978
Matrimonial Causes Act 1973
The Child Support Maintenance CalculationRegulations 2012
The Children and Families Act 2014
Probert, R. (2011). Family law in England and Wales. Alphenaan den Rijn: Kluwer Law International.
1 Probert, R. (2011). Family law in England and Wales. Alphen aan den Rijn: Kluwer Law International.
2 Matrimonial Causes Act 1973
3 Domestic Proceedings and Magistrates’ Courts Act 1978
4 Ibid S3(2)
5 Ibid S2(1) (c)
6 Domestic Proceedings and Magistrates’ Courts Act 1978
7Probert, R. (2011). Family law in England and Wales. Alphen aan den Rijn: Kluwer Law International.
8 Supra 6 S3(4)
9 The Child Support Maintenance Calculation Regulations 2012
10 Domestic Proceedings and Magistrates’ Courts Act 1978
11 Ibid s(3)
12 The Children and Families Act 2014