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Ending a Relationship
A marriage is only ended in the eyes of the law if the parties
obtain a divorce, whereas a cohabiting couple can end their
relationship without going to the law.
However, on the ending of a marriage by divorce, the courts
have wide powers to make financial arrangements and orders
regarding the property of the couple. These powers are crucial
because they allow the court to make what it considers are
fair orders in all the circumstances of the case. Under the
Matrimonial Causes Act 1973, as amended, the court will take
into account a variety of different factors in determining
what orders it should make. It can order the payment of periodic
payments or maintenance, it can order the transfer of property,
such as the matrimonial home or shares, and it can order the
making of lump sum payments.
There is no automatic rule that applies to divide the
assets of the couple, or to provide continuing financial
support. Instead the court will try to make orders that are
individually suited to that particular couple.
It will look at the following:
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a)
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The income, earning capacity and financial resources
of the parties - this will involve a realistic assessment
of what the parties have and what they can reasonably
be expected to acquire in the future- and will include
future pensions and pension funds. |
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b)
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The financial needs and obligations of the parties -
this will take into account the need for housing, and
any obligation one party might have to look after the
children, thereby reducing their earnings. |
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c)
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The standard of living enjoyed by the family |
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d)
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The age of the parties and the duration of the marriage-
greater provision is usually needed for an older spouse
who may be more disadvantaged after a long marriage than
a young spouse after a short marriage. |
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e)
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Any physical or mental disability. |
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f)
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Any contributions made or likely to be made to welfare
of the family - this does not just mean financial contributions,
it takes into account contributions made by staying at
home and looking after a family. |
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g)
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Any conduct if it would be inequitable to disregard
it - this does not mean the court will take into account
every instance of matrimonial misconduct - it is exceptional
for conduct or behaviour to be taken into account. |
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h)
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Any loss of benefit in the future, such as lost pension
rights. |
The court will consider the welfare of any children of the
family, and will consider the desirability of a clean break,
where the financial obligations of one party to the other
end, either immediately or at a definite future date. Clean
breaks are desirable in that they free the couple to go on
with their lives without any continuing obligation to one
another. However, they are hard to achieve, especially where
there are children, as it is difficult to guarantee that the
financially weaker spouse will be able to be self - sufficient.
In a recent case called White v White the House of Lords
called for courts to take all factors into account, and not
to discriminate against husband or wife, wage earner or home
carer. The House of Lords called for judges to check what
they were thinking of awarding against a " yardstick
of equality", with the emphasis being on equal division
of funds unless there were good reasons for departing from
this.
If a couple cohabits but do not marry then there is no obligation
at the end of the marriage for one to support the other. The
law does not allow a person who merely cohabited to acquire
financial provision for them, although where children are
involved there will be financial consequences. (See
earlier).
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