Factors considered by the court

Section 25 checklist

The starting point for the courts and practitioners alike on an application for a financial order is the checklist set out in section 25 of the Matrimonial Causes Act 1973 (MCA 1973) and the equivalent provisions in Schedule 5, Part 5 to the Civil Partnership Act 2004 (CPA 2004). The factors are:

  1. the income, earning capacity, property and other financial resources that 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 that it would, in the opinion of the court, be reasonable to expect a party to the marriage to take steps to acquire

  2. the financial needs, obligations and responsibilities that each of the parties to the marriage has or is likely to have in the foreseeable future

  3. the standard of living enjoyed by the family before the breakdown of the marriage

  4. the age of each party to the marriage and the duration of the marriage

  5. any physical or mental disability of either of

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Monumental Supreme Court decision on matrimonialisation and sharing principle (Standish v Standish)

Family analysis: The Supreme Court’s much-anticipated judgment confirms unequivocally that the sharing principle does not apply to non-matrimonial property. Sharing of matrimonial property will usually be 50:50, though there may be a departure from equal division where justified. Non-matrimonial property typically has either a pre-marital origin, or, where it is received during the currency of the marriage, an external source (eg an inheritance). Title to an asset is expressly not determinative as to whether that asset is or is not matrimonial. Though non-matrimonial property may become matrimonial (ie ‘matrimonialisation’) this will depend on how the parties have been dealing with the asset and whether, over time, they have been treating that asset as shared between them. The concept of matrimonialisation is to be applied neither ‘widely’ nor ‘narrowly’ (contrary to what the Court of Appeal had held)—again, the enquiry should focus on how the parties have dealt with the asset. Where an asset is transferred from one spouse to another with the intention to save tax (as had occurred in the case), this will not normally show that the asset is being treated as shared. The Supreme Court ultimately upheld the decision to dismiss the wife’s appeal, though it did not wholly agree with the Court of Appeal’s reasoning. Pursuant to that decision (made on the sharing basis) the wife would be provided with circa £25m of the total assets figure of circa £132.6m, being half of the matrimonial assets figure of £50.48m. David Wilkinson, solicitor at Slater Heelis, considers the judgment.

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