Section 25 of the Matrimonial Causes Act 1973
In any financial proceedings within the context of a divorce knowing what you are entitled to is a key issue. It is impossible to make an informed decision without knowing this basic information. Spouses involved in divorce in England always want to know on what basis the UK divorce law decides financial issues between husband and wife if the Courts have to decide the issue. Indeed, this is what is at the heart of most divorce cases. If there is a dispute it is more likely than not to be about money whether that is about periodical payments for a spouse, dividing the equity in the former matrimonial home or divorce and pensions. In fact, the relevant principles to be applied in resolving these disputes are primarily to be found in Section 25 of the Matrimonial Causes Act 1973 which is set out on the right for convenience of reference.
It should be emphasised that each case is different and that the factors to be considered on the right are not applied mechanically. It takes knowledge of the decisions of the courts and experience to acquire a “feel” for the sort of decision which a court is likely to make in any particular case. For that reason there is no substitute for professional advice. The procedure by which financial issues (transfers of property, maintenance etc) are resolved within the context of divorce is not straightforward. If there are any significant assets involved it is sensible to take sound legal advice about this. (Indeed, even if there are no assets the financial issues should be settled formally and finally in any divorce. Please take a look at the case of Wyatt v Vince to understand just how important this is). This is normally the most contentious area of a divorce and there may be a great deal at stake (even if that may not be immediately apparent). It is not a mechanical process and there are many pitfalls to avoid which are not obvious from the wording of the above Act.
A layperson who has no experience of other divorce cases and who is personally involved in a divorce is always likely to seize upon the particular words of section 25 which seem most favourable to his or her own case. This is an entirely understandable phenomenon (and one to which lawyers themselves are as prone as anyone else when personally involved in divorce) but the court must always look at matters in the round. Divining the “right” answer in a given case is precisely why one needs professional expertise.
If one takes the very common situation where, for example, a marriage has lasted ten years and there are young children it is quite likely that the wife and children will remain in the former matrimonial home and that the property may be transferred into the wife’s sole name. The reason this happens is because the duty to give first consideration to the welfare of any minor children and the “needs” of the children to have a roof over their heads tend to outweigh most of the other factors. It may be, incidentally, that the husband does not necessarily lose all interest in the property in these circumstances. He may, for instance, retain a charge on the property for a percentage of its value. The important thing is that there is no way of knowing this from a simple reading of the words of the section but an outcome such as this is very often what happens because the other options are less attractive for various reasons.
Please continue for more details of the principles behind resolving the financial issues arising from divorce.
Section 25 of the Matrimonial Causes Act 1973 essentially reads:-
”It shall be the duty of the court in deciding whether to exercise its powers ….. to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
25 (1) It shall be the duty of the court in deciding whether to exercise its powers …. to have regard to all the circumstances of the case including the following matters, that is to say –