Section 25 (1) (a) of the Matrimonial Causes Act 1973

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

This is obviously of critical importance in any decisions made by the divorce courts in applications to resolve the financial issues arising from the marriage. They can only make awards of maintenance, transfer of property etc on the basis of what the parties’ resources actually are or may reasonably be foreseen to be in the near future. Although it is possible for the courts to make orders on the basis that a husband or wife could find work if they wanted, or possibly find more remunerative work, in practice no court will make such an order unless there is convincing evidence to this effect.

The courts are not really in the business of speculation and they operate on the basis of evidence. For instance, it may well be the case that one spouse stands to inherit a substantial sum from a parent in the foreseeable future but a court will very rarely take that into account because people can change their wills and all inheritances are to some extent speculative up to the point of death. It is much the same with earning capacity, intention to re-marry etc. Unless there is evidence to the effect that a spouse intends to re-marry – such, for instance, as the spouse saying so in evidence – a court will tend to ignore it no matter how likely it may be. It is important to understand how reliant the courts are on evidence. They will almost always take the financial situation as it is rather than as it might be at some point in the future.

That is not to say, of course, that a husband who has been earning, say, £100,000 per annum for the last X number of years can suddenly decide to take on a low paying job and ask the court only to take into account his now reduced income. The courts do take a realistic approach in such cases and will be likely to assume that the husband can continue earning £100,000 for the next X years. To approach it otherwise would mean that the court would be taken as a fool.

On the other hand, if the dramatic drop in income is for a provably bona fide reason such as an accident or illness then a court will not impute an earning capacity which is probably no longer there.

In most cases, of course, it will be quite easy to establish what the parties’ earning capacities are from wage slips, bank statements etc and this is the evidence the courts rely upon in the great majority of cases.

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