R&I spotlight on matrimonial law
Produced in partnership with Melania Constable and James Riby of Charles Russell Speechlys LLP
R&I spotlight on matrimonial law

The following Restructuring & Insolvency guidance note Produced in partnership with Melania Constable and James Riby of Charles Russell Speechlys LLP provides comprehensive and up to date legal information covering:

  • R&I spotlight on matrimonial law
  • Principal legislation
  • The financial remedy court process
  • What effect does bankruptcy have on financial remedy proceedings?
  • Can the trustee pursue their own financial remedy claims against the non-bankrupt spouse under the MCA 1973?
  • Bankruptcy proceedings initiated to frustrate financial remedy claims under the MCA 1973
  • Issues to consider for insolvency practitioners
  • Challenges to a trustee and/or their actions
  • Take away points

It is not uncommon for bankruptcy practitioners to encounter concurrent bankruptcy and matrimonial proceedings. In some instances, the bankruptcy proceedings may have been instigated by one spouse with the intention of defeating the other's financial claims upon divorce.

Principal legislation

The Matrimonial Causes Act 1973 (MCA 1973) governs the divorce process in England and Wales. If divorce proceedings are pending, the MCA 1973 also governs the division of the parties’ assets and incomes upon the divorce.

The court has a wide discretion when determining whether and how a couple's assets and incomes are to be divided and it can make a wide variety of orders to do this, including:

  1. an order for ‘periodical payments’ to be made by a party to the other and/or for any children of the family. Such payments can be secured by assets. Periodical payments orders are often called ‘maintenance orders’ but practitioners should note that since the introduction of the EU Maintenance Regulation Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations) in 2011, a ‘maintenance order’ can refer to any order made under the MCA 1973 which is intended by the court to meet a person’s capital and/or income needs

  2. an order for one or more ‘lump sums’ to be paid by