Flashcards in Financial Provisions on Divorce Deck (82)
What did Lord Hope state in the case of Little v Little 1990?
That despite the detail list of provisions of the 1985 Act the matter is one of discretion, aimed at achieving a fair and practicable result in accordance with common sense.
When will a Court make an order in relation to financial provision?
s.8(2) of the Family Law (S) Act 1985
- Rule set out
Under s.9(1)(a) of the Family Law (S) Act 1985 there should be fair sharing of matrimonial/partnership property.
Where can the definition of what is (a) matrimonial property and (b) partnership property be found?
(a) FL(S)A 1985 s.10(4)(a)&(b) sets out what is matrimonial property
(b) FL(S)A 1985 s.10(4A)(a)&(b) sets out what partership property is.
What is the relevant date?
The cut of time for ascertaining what is or is not matrimonial property at the end of a marriage or partnership.
Where can details of when the relevant date apply be found?
Family Law (S) Act 1985 s.10(3)(a) and (b)
What happened in Banks v Banks 2005 in respect of the relevant date?
- Issue arose in divorce proceedings as to the relevant date
- Pursuer argued date to be Jan. 1996 as they had almost no direct contact
- Defender argued July 2001 when the pursuer last visited the matrimonial home
- The relevant date was May 1998
- Judge made clear that in 1996 despite being abroad, his possessions were still in the matrimonial home and correspondence was still sent there to him
- still living together as man and wife
- 2001 not relevant date as although he visited and ate meal they were not living together as man and wife
- May 1998 relevant date as this was when Pursuer ceased to stay overnight in the matrimonial home and same month changed bank accounts
-Significant change in the relationship
What happened in the case of Buczynska v Buczynski 1989 in respect of the relevant date
- Parties argued opposing views on when the relevant date was
- Mainly regarding the fact the matrimonial property increased in price substantially between their two argued dates
- Judge found in favour of date argued by the pursuer (wife) of May 1987 as this was when the parties ceased to share bedroom, ceased to cook for the husband and solicitors sent letter to wife to vacate house
- Husbands argument that the relevant date was in 1980 when his wife admitted to an affair was not accepted
What happened in Samurai v Al-Samurai 2015
- Wife reclaimed against determination of Lord Ordinary that relevant date was 19 June 2013
- This was the date upon which her solicitor made the husband aware she considered their marriage to be over
- Wife alleged that the relevant date was 13 May 2013 as after a phonecall with solicitors she had no prospect of reconciliation
- The two cohabited with one another until summons served in September 2013
HELD - reclamation dismissed
- Lord Ordinary was correct in stating they were still cohabiting as husband and wife in May
- that position changed upon the letter being delivered to the husband
What happened in Skarpass v. Skarpass 1993?
EXCEPTION TO RELEVANT DATE CUT OFF
- Wife brought an action of divorce seeking a capital sum
- Capital sum represented a proportion of substantial damages awarded to husband after relevant date
- Event which led to damage proceedings occurred between the marriage and the relevant date
- W was entitled to a portion of the damage even though at the relevant date an amount of damages had not been calculated
- Still satisfied matrimonial property
Does property acquired before the marriage fall in to matrimonial property?
- unless house is used as the matrimonial home which was acquired by one party before the marriage.
- John buys an Aston Martin prior to his marriage with Anne
- It costs him £47,000
What will Anne be entitled to?
Anne entitled to nothing
- The car was purchased prior to the marriage and therefore does not constitute matrimonial property.
- John and Anne buy an Aston Martin for £47,000 prior to their marriage
- They are joint owners
How much would each party be entitled to on divorce?
Would one party get to keep the car?
- The car would not be included in matrimonial property as it was purchased prior to the marriage
and s.9(1)(a) cannot apply
- They would remain co-owners of the car on divorce.
What happened in Mitchell v Mitchell 1995?
- Parties married, divorced, remarried and divorced again
- husband retained matrimonial home after first divorce
- Question arose as to whether it could be regarded matrimonial property in the second
- Husband argued it was purchased in contemplation of the first marriage not second therefore should not be regarded as matrimonial property
- Parties had acquired the property for use as a family home
- s.10(4) did not require that the property had to be acquired for use as family home in particular marriage
- Or that it had to have been used continuously by parties
Are gifts or succession from a third party included in matrimonial property?
- Excluded as per s.10(4)
Do gifts from the parties in the marriage to one another fall into matrimonial property?
When may gifts or succession from a third party fall in to matrimonial property?
Where the gift or succession changes form or substance during the relationship
What did s.16 of the FL(S) A 2006 change in relation to valuation?
Matrimonial Property is to be valued on the "appropriate valuation date"
- rather than the old law at the relevant date
What must the Court sometimes rely on in cases of valuation?
Court must listen to the opinion of competing experts and objectively favour one to the other as per Parker v Parker 2014
What happened in the case of Wallis v Wallis 1993?
- Spouses co-owned property worth £44,000 at relevant date and £68,000 at date of divorce
- Husband was was granted wife's interest in the house and compensation of £34,000 was granted to the wife
- Husband appealed against wife's payment
- Appeal granted, the value of matrimonial property had to be established at relevant date, wife only entitled to £22,000
What happened in the aftermath of Wallis?
- Reform of the 1985 Act where an order for transfer of property was sought.
- s.16 of the FL(S)A 2006 amended s.10 of the FL(S)A 1985 so that property would be valued at the "appropriate valuation date" rather than the relevant date
What is meant by the appropriate valuation date?
FL(S)A 1985 s.10(2A) as amended by the FL(S)A 2006 s.16
- Date parties agree on
- in absence of agreement the date the order is made
Are pensions to be included in matrimonial property?
-per s.10(5) of the FL(S)A 1985
What is the Formula to work out the proportion of the pension which is matrimonial property
CETV x years in scheme (married)
total years in scheme
- Gordon began contributing to a pension scheme in 1992
- He married Hilda in 2005
- They ceased cohabitation in 2010 - The pension was valued at £50,000 at the relevant date
- How much of the pension will be matrimonial property?
= £13,888 of the pension in will form matrimonial property
If a husband has a pension as well as other assets what can they agree upon with the spouse?
- The spouse would be entitled to a half share of each of these as matrimonial property
- Often the person holding the pension wishes to protect it and therefore may pay more from other assets to the spouse
- This is an offset against an equivalent value
- Gordon wishes to protect his pension rights
- He is divorcing his wife Anne
- He has been part of a pension scheme for 15 years, and married for 5
- His CETV has been valued at £30,000
- He has savings of £100,000
(a) How much of the pension would be matrimonial property?
(b) Could Gordon protect his pension rights?
= £10,000 matrimonial property
(b) In theory the spouse would be entitled to half of all assets
- £5,000 pension
- £50,000 savings
TOTAL - £95,000
To protect his pension rights Gordon may transfer £55,000 to the spouse as an offset against an equivalent value
So he will lose more savings but keep his pension rights
Where no assets are available how may a pension be split in accordance with financial provisions?
As per s.12A of FL(S)A 1985 -
- Earmarking, lump sum order, this is possible where pension contains lump sum payable on death
- As per s8(1)(baa) Pension may be shared when it matures
What is fair share?
FL(S)A 1985, s.10(1)
When may matrimonial property not be divided equally?
- If special circumstances justify a different division
- Found in s.10(6) of FL(S)A 1985