Section 25 Part 3

(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;

Needs” are a crucial factor in how the court exercises its powers: (see video: Section 25 Main Cases).  In most cases the court will be looking at making sure each party has somewhere to live and has enough income to live on.  In the majority of cases this is the most important factor.

Obligations” could include debts.  A court will look at the parties’ debts when deciding how to divide up the assets.  If a party has a large credit card debt there may be an argument about whether it is a “matrimonial debt”.  In other words was it a debt which arose during the marriage.  Generally speaking it would be fair for the court to take account of a debt like that when dividing up the assets.  If on the other hand a party has built up a debt after separation by extravagant living then a court might decide not to take account of that when dividing up the assets.

Responsibilities” could include one of the parties having a new family.  For example if the Husband has a relationship with a new woman and has a new child.  The case law says the court should if anything have more regard to the first family.  The second family however, cannot be ignored.

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

This is particularly important in deciding what sort of accommodation a person needs and also how much income they need.  A court would be unlikely to say that someone who lived a millionaire lifestyle only needed a bedsit to live in etc. 

(d) the age of each party to the marriage and the duration of the marriage;

Age can be important in a number of ways.  If there is an age gap between the parties it can have an effect.  For example, if a man has married a much younger woman, it might be that he is coming close to retirement and that his Wife has many more earning years left.  Age is also an important matter to consider when dividing up pensions.

Duration of the marriage.  Generally speaking, the longer the marriage, the more likely it is that assets will be divided equally.  Of course the court tends to look at “needs” first.  However, after needs are dealt with, the court will look at how to share the remaining assets.

(e) any physical or mental disability of either of the parties to the marriage;

To a certain extent this speaks for itself.  Medical evidence may be necessary.  Physical disability is likely to affect a party’s earning capacity.  Difficult cases are likely to arise where one of the parties is disabled and the family home has been specially adapted to meet that party’s needs.

(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;

It would be fair to say that previous contributions rarely feature as a significant factor.  Following White v White [2001] the courts are usually not interested in looking into who did the most during the marriage or who was the better partner.  Sometimes a party wants to argue that they made a “special contribution” and should therefore have more of the assets.  There are reported cases where this argument has succeeded, but they are rare and are restricted to “big money” cases.

A type of contribution which is often taken into account is the future contribution of a parent who is going to be the primary carer for young children.

(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

Conduct is another matter which is rarely considered by a court: (video: Reckless spending and other conduct).  For the court to take it into account the conduct has to satisfy a high standard, it has to be conduct which it would be “inequitable to disregard”.  Remember it is the court’s opinion which matters about this, not yours.  Sadly courts are faced with disreputable conduct all the time.  As an example the fact that one of the parties has had an affair or indeed numerous affairs is not something that a court would ordinarily take into account when dividing the assets.

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