Family Law and Practice Workshop 3 - Financial Orders I - Prep and Workshop PDF

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FLP WS 3 Financial Orders IOutcomes: Advise a client on the courses of action available to preserve the matrimonial assets and which are most appropriate in the circumstances. Apply the factors in s MCA to a given set of facts. Formulate a reasoned counter-offer during written negotiations in a fina...

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FLP WS 3

Financial Orders I

Outcomes: 1. 2. 3.

Advise a client on the courses of action available to preserve the matrimonial assets and which are most appropriate in the circumstances. Apply the factors in s.25 MCA to a given set of facts. Formulate a reasoned counter-offer during written negotiations in a financial case.

 Go to the court to have the transaction reversed.  Why might you not want to go to court? It would be acrimonious and aggressive.  S.25

Prep task From:

Trainee

To:

Holly Simmons

Date:

5 April 2022

Client’s name:

Theresa O’Brien

Client’s matter: Issuing divorce proceedings

Fear that client and her children would be left with nowhere to live  She would not be left with nowhere to live as the court would most likely allow for the matrimonial home to be retained due to her situation.  The court could either order an outright transfer of the matrimonial home from Kevin to Theresa in return for a lump sum. The courts have regards to the value of the equity and the s.25 MCA 1973 factors.  As Theresa has little money, it is most likely that the court would allow for a deferred trust of land, most likely in the form of a Mesher order.  Typically, the events which will trigger the sale in a Mesher order will be the first of the following to occur. She would be entitled to remain in the matrimonial home until: (a) the occupying spouse dies, remarries or voluntarily leaves the property; or (b) the youngest child (Sandra) reaches a specified age (usually 17 or 18 years) or ceases full-time education (if this happens earlier/later).  Register a matrimonial home rights as a remedy with form AN1 (agreed notice) or HR1 (more specific to purpose; home rights) – protects Theresa’s right to stay there. The HR1 ceases to be operable – her rights to stay in the home runs out on decree absolute (when the final divorce order goes through).  S.24 The threatened sale of the business  S.37(2)(a) MCA 1973 allows Theresa to seek an injunction from the court to prevent Kevin from disposing the business.  Theresa must first make an application for financial relief (lump sum or property adjustment order) as the petition cannot be a standalone. The injunction may be granted if the court is satisfied that Kevin is going to make a disposition of property with the intention of defecting the claim of financial relief, or with the intention of frustrating or impeding its performance. There is a sense of immediacy here as Kevin is looking for a buyer.

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FLP WS 3

Financial Orders I

 Injunction restraining Kevin from either selling it or making sure he is not going to dispose of the proceeds himself. The problem with stopping him from selling it there might be a bigger lump sum that can be transferred to her.  Husband could make undertakings rather than getting a court order.  Rebuttable presumption that they have got the intention to do this. The sale of the terraced houses  Theresa learned of this disposition after it had occurred.  S.37(2)(b) empowers the court to grant an injunction setting aside a reviewable disposition (s.37(4) – here Kevin sold to his brother) made with the intention of defeating a claim for a financial order, if it financial provision or different financial provision would be made to the applicant as a result.  Could make an application to set aside the disposition. Reversing the sale of the terraced houses.  S.37(4) – if Kevin’s brother had been informed that the sale of the terraced houses had the intention to prevent the wife from getting the money then he would not be acting in good faith. If Kevin has acting in good faith then the wife would have no remedy.  Presumption of undoing under s.37(5). Trainee

Workshop  Clean break – No ongoing payments from one party to another.  Proposing to split the proceeds equally – could not be fair as she is looking after the children and would require more expenses. The children are still dependent. Errors with the letter – not detailed enough (e.g. does not say how the children are being maintained and on what days), does not refer to the law.  Andrea will stay in the home with her children until they reach the age of 18  This case is not appropriate for clean break  S.25(2)(a) resources and income– Capital  £15,000  Sold the company for £25,000  Home is £240,000 (mortgage is £120,000) Income  £50,000  Andrea has not worked in 15 years.  S.25(2)(b) – financial needs and obligation – the court will consider the children’s’ needs as well as both parties needs for a home.  Capital – family home, business and investments.  Asset – Capital needs is the matrimonial home within the school location, 3-bedroom house for 3 people.  She needs to get a job  Court is hoping to cap the maintenance to achieve a clean break.  Sharing White case – checklist at the end of chapter 4.  Two thirds of the sale after the Mesher order. Mesher order on the basis that if it sold now, she would not be able to house herself and the children, and she would not be able to get a mortgage.– remain in the house until the youngest is out of full-time education and the husband gets a third of the sale value. She should take steps to maximise her earning capacity as the children are getting older – maybe become a journalist again. Ongoing maintenance until she earns £35,000 for example.  Proposal is unacceptable as it would leave her with insufficient money.

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FLP WS 3

Financial Orders I

 Both need sufficient income to live off. Clean break is not acceptable to Andrea. She will have to update herself to use modern IT. Will not be able to go into a full-time job as she still has to take care of the children after school and in the holidays. Even if she got a childminder, that would be expensive.  Marriage of 18 years – it is a long marriage so all up for grabs; if a shorter marriage then the courts are more likely to order a clean break.  Average standard of living.  Not a high-income case – not in the fairness principle.  Counteroffer – Mesher order. If the house is sold, it would not be unrealistic for her to claim all the net proceeds. The court would not be averse to ordering some sort of maintenance for her. The maintenance could be left open for a variation later on.

Child maintenance: Mathew should pay a proportion of his gross income according to the CSA 1991. His gross annual income is £50,000. £50,000 divided by 52 weeks = £961.54 £800 x 16% (2 children) = £128.00 £961.54 – 800 = £161.54 161.54 x 12% = £19.38 £128.00 + £19.38 = £147.38 payable from Mathew for child support. CMS. If he does not pay Andrea can go to the CMS. Spouse maintenance: Mathew can give Andrea a lump sum.

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