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Financial III Flashcards

(72 cards)

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1
Q

guidance given in ss v ns re maintenance payments

A

should be paid when decisions made by the couple during the marriage meant the recipient needed such maintenance

if needs are not generated by the marriage, maintenance should be aimed at alleviating sig hardship

courts should consider term maintenance in every case

where choice between extendable term and joint lives is finely balanced, courts should choose former

if choice is between extendable/non extendable, decision in favour of economically weaker party

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2
Q

what if payers income derives from bonuses

A

court may provide for R’s maintenance to be paid from bonus subject to a cap (avoids unfairness from unanticipated substantial bonus

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3
Q

why might courts make a nominal PPO

A

ensures R can return to vary an order where circumstances change

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4
Q

what will courts consider in high income cases

A

the standard of living enjoyed prior to the breakdown & s25 factors

clean break is favoured

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5
Q

what happened in miller miller ; macfarlane

A

macfarlane awarded 250k/annum for her lifetime
size reflected couples joint decision for m to give up her career
acknowledged that indefinite maintenance is inappropriate
held that onus on husband to seek variation once M revived her earning capacity

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6
Q

guiding principle for middle income families

A

needs prioritised
ensure payer can afford proposed amount, and R can live off income

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7
Q

what if there are insufficient resources for both parties to be independent of welfare benefits

A

pragmatic approach- identification of how much R needs, how much payer can spare

courts will not award an amount that places the payer below notional subsistence level- if after cm payment, income is close to subsistence level no spousal maintenance will be paid

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8
Q

what is the primary family asset

A

matrimonial home

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9
Q

what must courts decide re capital assets

A

s25 factors

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10
Q

what PAO can courts make

A

immediate sale
outright transfer
deferred trust of land
deferred charge

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11
Q

when will an immediate sale be appropriate

A

where courts effect a clean break s24 mca

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12
Q

considerations re immediate sale

A

liabilities ought to be dealt with from sale proceeds (Existing mortgage, estate agents commission, conveyancing fee)

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13
Q

what does s24a(2) state

A

order can contain consequential/supplementary provisions as the court sees fi

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14
Q
A
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15
Q

what if one party is of low income

A

they may receive a larget proportion to reaccommodate

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16
Q

what if minor children are involved

A

first consideration given to their welfare
moving may cause adverse effects on their security / stability

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17
Q

why might an immediate sale be ordered

A

insufficient resources to retain and maintain the home

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18
Q

outright transfer

A

immediately determines house ownership

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19
Q

court consideration re an outright transfer

A

transferee has the means to pay outgoings
transferor has alternative accomm
if transferor loses large amount of capital, courts will seek to compensate loss

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20
Q

what is deferred trust of land

A

house is held in the parties joint names, specifies who is to occupy on sale
sale contingent on triggering event

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21
Q

advantage of deferred trust

A

allows party and children to remain whilst non occupying spouse retains an interest

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22
Q

disadvantage of a trust

A

continuing financial link between parties

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23
Q

3 variations on a trust of land

A

martin
mesher
harvey

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24
Q

events triggering a mesher order

A

occupying spouse dies, remarries, or voluntarily leaves, youngest child reaches specified age or leaves full time education

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25
advantages of a mesher order
clear to parties when the sale will take place = they can plan accordinly
26
disadvantages of a mesher order
prolongs the inevitable
27
what is a martin order
similar to mesher, save as to triggering events makes no reference to children house only sold if occupying spouse leaves, remarries, or dies right to remain for life
28
where might martin order be appropriate
one spouse is in a significantly weaker financial position
29
disadvantage of martin order
non occupying spouse has an indefinite wait to realise capital
30
harvey order
similar to martin order, provides for payment of occupation rent by occupying spouse
31
considerations re harvey order
how rent is to be assessed, paid
32
when is the obligation to pay triggered
by children growing up, or mortgage being paid off
33
deferred charge
property transferred to sole occupier, non occupier holds a charge over the home sale cant be enforced until triggering event happens (non payment)
34
what if a 3rd party owns part of the home
court may make an order solely as to spouses share
35
rules where spouses are both party to a mortgage
both bound
36
exception to rule that parties are bound to a mortgage
undue influence
37
what must lender show to rebut presumption of undue influence
transaction was properly entered into- there was actual or constructive notice
38
what must courts consider re rented home
whether tenancy can/should be transferred into one partys sole name
39
what if tenancy prohibits assignment
court cannot order transfer without LL consent
40
what is not a tenanct
statutory tenancy under rent act 1977 or protected tenancy
41
what if a tenancy is under joint names
either tenant can serve notice to quit effect without consent of other MONK
42
action that can be taken re joint property
none- mortgage requires consent from both parties
43
consideration re JT
surviviorship applies, so jt ought to be severed into a tic via written notice of severance
44
what if spouse dies intestate prior to final divorce order
spouse can inherit by default
45
what if one spouse is legal owner, and the other is not
home rights to family home s30 FLA protects non owner against eviction without court leave
46
when does s30 fla right terminate
on death of owning spouse/final order
47
procedural step re s30
registration of family home rights to be binding on subsequent buyer or lender
48
what does s30(3) oblige lender to do
accept mortgage payment from non owning spouse possession proceeding required notice to non owner
49
what if owning spouse faces bankruptcy
vests owning property into TIB TIB can apply to terminate rights
50
pending land action
registration preventing any new dealing without being brought to non owners attention
51
how can spouse be prevented from disposing of property
s37 MCA injunction
52
what must cl do to get an injunction
apply for fo court must be satisfied that other party has intent to dispose court can make order preventing party from disposition
53
what must cl do if they suspect spouse is making disposition
evidence that disposition is likely and that application is not merely precautionary
54
what is rebuttable presumption
that R intends to dispose of property to jeopradise a's application
55
when can one apply without notice
where there is exceptional urgency 18A
56
what if spouse learns of disposition once property has been disposed
s37(2)(B) injunction can be made to set aside reviewable disposition AC v DC
57
excpetion to s37 2 b
transaction made to bona fide purchaser for valueable consideration without notice if it took place 3 years prior to application
58
what if a reviewable disposition is made after financial proceedings have been determined
can be set aside under 37(2)(c) if the object was to avoid enforcement
59
what constitutes a dispostion
any disposal of property except one contained in a will
60
when will lump sum not be ordered
where assets are modest
61
what will courts consider when determining how much lump sum should be
s25 factors white, miller, mcfarlane - LSO in big money cases substantial - strive towards clean break
62
courts position re business asset
reticent to pierce corporate veil d v d & b (commercial reality that fairer result achieved by not selling)
63
how can LSO be calculated
duxbury- assessment as to capital sum to produce a given income for the rest of recipients life index linked net income
64
3 ways of dealing with pension rights
off setting attachment sharing
65
how is pension valuated
cash equivalent transfer value- maskell: valued at amount of capital which could be taken out at retirement
66
what if pensions is undervalued
martin-dye exclude pension from capital asset and make pension sharing order in same % as if capital had been divided
67
what was suggested in vaughn
when setting out capital assets, capital rather than pension to be totaled
68
should capital prevail over income equality
w v h dependent on indivudal case- where pension is large proportion of assets, income is likely preferred
69
what must court consider re order for sale
creditor interest conduct of spouse contributing to bankruptcy needs and financial resources of spouse needs of children all other circumstances (bar bankrupts needs)
70
what if trustee applies after 1 year post bankruptcy
court assumes creditor interest prevails
71
what are exceptional circumstances
judd- wife had cancer and needed chemo haghighat - seriously disabled adult needed constant care
72

Family (10 decks)

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