Chapter 5 Key facts checklists

Financial provision on divorce or dissolution

• On divorce, nullity, judicial separation, or dissolution of a civil partnership the court has wide statutory powers to redistribute property. This is different from the situation where a cohabiting couple split up (see Chapter 1, ‘Ending cohabitation’, p 8).

• Civil partners are treated in the same way as married couples but the law is governed by the Civil Partnership Act 2004 (CPA) rather than the Matrimonial Causes Act 1973 (MCA).

• The court has a wide discretion in reaching a decision.

• The court will consider all the circumstances of the case, and in particular the factors in s 25 MCA, before deciding what combination of orders to make.

• Case law in this area often focuses on ‘big money’ cases, where the courts have outlined some general principles that should be applied where resources exceed needs. These principles are likely to have little relevance in most cases.

• Any award must be fair. In deciding this, the court should consider the three principles of financial needs, compensation, and sharing.

• The courts are now likely to give effect to nuptial agreements (agreements between the parties which include ‘pre-nups’) if the parties entered into them freely and understood the effects, unless it would be unfair in the circumstances to hold the parties to the agreement. Nuptial agreements are sometimes treated as one of the circumstances of the case (s 25(1) MCA) and sometimes as part of the conduct of the parties (s 25(2)(g) MCA).

• Parents are obliged to support their children financially. The Child Support Act 1991, the Children Act 1989, the MCA, and the CPA all provide regimes for child support.