A good starting point is to consider that if the marriage is a short marriage, then the Court will look to put each party back to the position that they would have been in, if the marriage had never taken place. If it is a long term marriage, the starting point will be 50/50.
When considering what Orders should be made between divorcing spouses, the Matrimonial Causes Act 1973 (MCA) provides the Court with a wide discretion to achieve a fair outcome. In deciding how to exercise its powers, the Court must have regards for all the circumstances of the case, giving first consideration to any child of the family who is under 18; s.25(2) MCA lists particular factors which should be taken into account.
All financial resources will be considered by the court namely, the income, earning capacity, property and other financial resources which each spouse has or is likely to have in the foreseeable future, specifically including any increase in earning capacity that it would be reasonable to expect a spouse to acquire.
In relation to income and earning capacity the Court will consider the actual income of the parties and the potential income. The Court must consider factors such as age, work experience, how long since the party last worked, retraining needs and child care commitments.
The Court will go on to consider property and financial resources of the family; this will include property, savings and pensions in relation to both parties.
The Court will give limited consideration to the financial resources of a new partner in that it will only be taken into account in so much as how it may relieve a spouse of a financial burden that otherwise they may have had to meet.
Financial Orders for spouses upon divorce fall into two categories; income and capital.
The Orders that can be made in relation to income are Maintenance Pending Suit, which is an Order made before the divorce is finalised as an interim Order or Spousal Maintenance, which is made at the conclusion of the divorce.
The Orders that can be made in relation to capital are Lump Sum, Property Adjustment, Property Sale and Pension Orders.
The subsequent development of case law has led to more certainty in the application of the law relating to Financial Orders, there is still some way to go. Whilst the Higher Courts are attempting to introduce guidelines to assist with consistency in case, they can only interpret the current statutes, not create new laws.
Andrew Isaacs Law can advise you on all aspects of divorce and the resulting financial issues. Contact us today to arrange a consultation.