A Brief And Simple Guide To s25 Matrimonial Causes Act 1973
In my view, the biggest and most difficult question client’s ask me relate to “how much will I get” following on from their divorce or dissolution of their (same sex) partnership.
It is not an easy question to answer and whilst clients may desire direct straightforward answers, the reality is straightforward answers are easy to provide in determining this question. It is difficult providing a range of figures that make be a likely award when full financial disclosure has been given, but it is dangerous and nigh on impossible at the outset of a case when there is no financial or very limited financial disclosure.
There are many reasons why Solicitors are evasive initially when it comes to giving this advice and never 100% confident even when they do. This does not reflect on the Solicitor but on the current state of the law.
The easiest way to explain this is to consider the following:
a) Stare Decisis
b) The sources of the law
c) The process of coming to a decision
Stare Decisis
Sorry to be a bit technical at this juncture. Stare Decisis the process putting it simply, where courts follow the decision of a previous court to ensure consistency. So, if two very similar people say, undertake the same criminal activity anywhere in the country, they should, at least in theory receive the same punishment or sentence.
In family proceedings, this does not happen. The previous decisions of the court are not binding in a subsequent court on a similar matter (and many would argue that no two family cases are ever the same anyway).
Instead, in family proceedings, previous decisions of the courts are persuasive. That is, they should be sufficient to persuade a subsequent judge in a similar matter – but may not automatically do so.
So even very experienced practitioners who understand the law and keep abreast of the ne legal cases coming out of the higher courts will not with any degree of certainty be able to tell you always, certainly not initially, “how much will I get”.
Sources of the Law
The law that we rely on as professionals in helping us come to a decision on what we think may be a possible outcome of a financial case are mainly as follows:
a) Case law – previous cases that have taken place that may be similar in at least some ways to your case and thus give us some guidance. But note, Stare Decisis applies as I have mentioned above.
b) Statute – these are laws passed by Parliament, there are many, many laws passed by Parliament and we still refer to the ones that have not been repealed from the Married Women’s Property Act 1882 to the Matrimonial Causes Act 1973 and so on. Familiarity with these Acts of Parliament is essential but do not provide the whole picture.
c) Secondary Legislation – often when an Act of Parliament is passed, a lot of the fine detail if often left to a later date to be dealt with, usually by a Minister. This secondary legislation does not often have the same scrutiny as the Act itself does. Nonetheless, often these Statutory Instruments contain the “meat” of the “bones” of the Act of Parliament
d) Love them or hate them, the EU also passes legislation which impacts on family law. We always need to keep an eye on what is happening at EU level to ensure that our domestic laws are compliant. Sometimes the EU legislation directly relates to family law, such as Brussels II, but often there are indirect consequences of EU legislation which permeates its way into family law such as The Human Rights legislation (as I shall generically put it).
All that information combined, helps us to come to some idea of what you may be entitled to when considering the financial aspects of a divorce or civil partnership dissolution. That is not the end of it.
The Process of Coming to a Decision
The main piece of legislation (in this case an Act of Parliament) is the Matrimonial Causes Act 1973. In that legislation, when deciding how much each party will get in a financial settlement we of course consider section 25. Often this is referred to as the “s25 factors”. Lawyers consider this section in detail and those who don’t do so at their own peril:
Section 25 (2) says: As regards the exercise of the powers of the court [in relation to the financial aspects of a divorce or civil partnership dissolution ] in relation to a party to the marriage, the court shall in particular have regard to the following matters-
(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future including in the case of earning capacity any increase in that capacity which it would in the marriage to take steps to acquire;
(b) the financial needs, obligation and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
(c) the standard of living enjoyed by the family before the breakdown of the marriage’
(d) the age of each party to the marriage and the duration of the marriage;
(e) any physical or mental disability of either of the parties to the marriage;
(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it’
(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
Having considered all these matters, we can come to a view. It’s not as straight forward as it looks, or is it?
I have been undertaking family law since 1995 and I still have to sit and think and deal with competing dilemmas of the law before coming to a conclusion that I can convey with some confidence and some sense to a client.
Please note that this article has been written with the lay person in mind. There are some technical inaccuracies where I have taken poetic licence to convey the point or sentiment. At no stage whatsoever should you at all rely on the information included herein.
This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.
Shak Inayat
Solicitor
0207 183 2898
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