Family Law: Financial Provision in Divorce Cases

Running Head: Family Law 0
[Family
Law]
[2019
]

Family Law 1
Issue:
Cara needs advice right the financial provision which might be taken into consideration by
the court of law while taking into account regarding the various factors of divorce.
Rule:
The Matrimonial Property Act, 1997 and the successor of the act named Family Property Act
covers to all such people who are citizens of United Kingdom and who are having at least
two years of married life. It can also be noted that such act will apply to all the married
couples not at the individual citizens of the country1. The act deals with various provisions
regarding the marriage, divorce and maintenance of the individuals. The basic aim of the acts
is to protect the rights of the parties to the marriage.
General principles of the act: As the act is applicable to the married couples who are the
citizens of United Kingdom. As per the provisions of the act, the wife of the husband is
entitled to have an equal share in the property of the husband subject to some exceptions and
exemptions. As per the act, the court of law will not recognise any conduct done by the
spouse until and unless it has the financial consequences to the family.2 The law states that
both the spouse has the right to enter into the property agreement after the marriage or after
the death of the spouse, where an application needs to be presented by the spouse to the court
of law.
Grounds of Divorce: As per the provisions of the act, the application for divorce cannot be
made by the spouses within a year of marriage. After one year, the application can be made in
the family courts. The divorce can be done if the following grounds are proven:
1. If adultery is done by one of the married spouses where another spouse finds it
intolerable to live with another spouse.
2. If the behaviour of the spouse is out of the tolerable limit.
3. If the spouses have been living separately for more than two years and the spouses
agreed to have a divorced.
1 Alan Brown, ‘Pension sharing in Scotland: general principles in the Family Law (Scotland) Act 1985’
(2018) 40 Journal of Social Welfare and Family Law 1
2 Dinesh Bhugra, et al, ‘Legislative provisions related to marriage and divorce of persons with mental health
problems: A global review.’ 28.4 (2016)International Review of Psychiatry 386-392.

Family Law 2
4. If the parties are living apart for more than five years.
5. The act of desertion done by any of the spouses.
On the basis of the above five facts listed the court of law may order divorce between the
parties3. An application can also be presented before the court of law within the year of
marriage when any of the above five acts happen with any of the spouses.
Allocation of financial resources or property on marriage breakdown:
The act provides powers to the court of law regarding the division of assets on divorce or
judicial separation between the spouses:
1. The court may order to pay lump sum payment to the spouse.
2. The court may order the spouse to make periodical arrangements for another spouse.
3. The court may order a lump sum payment for the benefit of the children.
4. The court may order to sell the specific property and distribute the proceeds to the
spouse4.
5. The court may order to share pension fund to the other spouse.
6. The court may order to make periodical arrangements for the benefit of the children.
Properties to be included: The act recognises all the real and personal property acquired by
the spouse after their marriage. Real property is the property which includes jewellery,
household goods and other movable asserts whereas personal property is an immovable
property in the form of land, buildings, commercial spaces etc. As per the provisions of the
act, there must be some interest by both the spouses in the property of both the spouses5.
Properties not to be included:
3 Madelene De Jong and Walter Pintens, ‘Default matrimonial property regimes and the principles of European
family law’ (2015) a European-South African comparison
4 Nigel V Lowe and Gillian Douglas, ‘Bromley's family law’ (2015) Oxford University Press, USA.
5 Jonathan Hill & Máire Ní Shúilleabháin, Clarkson & Hill's Conflict of Laws. (4th edn, Oxford University Press
2016) 152.

Family Law 3
As per the provisions of the act, the property except for household goods and home which has
been acquired by the spouse before marriage is excluded until and unless it is ordered by the
court of law6. The law states that the value of the property at the time of the beginning of a
spousal relationship will not be divided between spouses but an increase in the value of the
property may be divided between spouses.7 In other words such an exemption is given to
spouses who hold such property before marriage, but after their marriage any property which
movable or immovable received by the spouses unless mentioned by the person who has
presented the gift to any of the spouses or such property has been received in the form of
inheritance until and unless such property is named after both the parties. The following are
the other properties which are exempted from the act:
1. Property exempted which was disputed under the court of law under the civil case.
2. The civil case in the court of law regarding the insurance claim of the damaged
property8.
3. Property acquired after the divorce of the married couples.
4. The family property where there is a valid agreement between the spouses.
It can also be noted that any appraisal in the value of the exempted property or any income
from the exempted property is also exempted from the distribution of the property between
the spouses. The act also states that the court has the right to reject such claims if the court
thinks that such exemptions are unfair. The court of law will also observe the following
situations:
1. The time duration of the spouses living together and living apart.
2. Contribution did by the spouse in purchasing the property.
3. The contribution is done by one spouse to another spouse in maintaining, using and
improving the property which is exempt in law9.
4. The time duration of the property and when it was acquired.
5. Tax liabilities of both the spouses.
6 George Gretton and Andrew Steven, ‘Property, Trusts and Succession’ (2017). Bloomsbury Publishing.
7 Alessandra Voena, ‘Yours, Mine, and Ours: Do Divorce Laws Affect the Intertemporal Behavior of Married
Couples?’ (2015) 105 American Economic Review 2295-2332.
8 Shazia Choudhry, ‘The impact of the European Convention on Human Rights on UK family law: doctrine,
theory and gender.’ (2016) Diss. University of Warwick.
9 Letizia Riccardi, ‘Women at a Crossroads between UK Legislation and Sharia Law’ (2017) 3 Journal of Law
and Social Sciences 2