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PVL2601 Assignment 2 Full Solutions Semester 2 2024 Course Family Law (PVL2601) Institution University Of South Africa Book Family Law
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Finance and property on divorce
FINANCIAL/ PROPERTY ORDERS ON DIVORCE
Part 2 Ss.21-40B Matrimonial Causes Act 1973
Wide judicial discretion in redistributing matrimonial assets. Decisions based on the unique facts of
the case.
Piglowska v Piglowska 1999- no rigid application of guidelines from previous cases.
White v White 2000- fairness is the overriding purpose. Discretion based systems: flexibility but
unpredictability.
1. Order for maintenance pending suit
S.22 MCA 1973
On a petition for divorce, nullity of marriage or judicial separation, the court may make an order
requiring either party to the marriage to make to the other such periodical payments for his/ her
maintenance and for such term, ending with the date of the determination of the suit, as the court
thinks reasonable.
A v A 2001- not just daily living expenses, may include sum to cover costs of the proceedings.
M v M 2002- substantial order can be made. Wife received £330,000 per annum maintenance.
2. Financial provision orders
Periodical payments S.23(1) MCA 1973
An order that either party to the marriage shall make to the other such periodical payments, for
such term, as specified by the court.
Orders can be made not only in favour of a spouse, but also to/for the benefit of a child of the family
aged under 18 or over 18 but in education/ training or in special circumstances (disability)
S.28(1)(a) MCA 1973: periodical payments in favour of a spouse terminate on his/ her remarriage.
Periodical payments cannot extend beyond the remarriage of/ formation of a civil partnership by the
party in whose favour the order is made.
Periodical payments do not automatically terminate on cohabitation. Payer can apply to the court to
have the payment reduced or extinguished.
Atkinson v Atkinson 1988- settled/ long term cohabitation cannot be equated with marriage. Court
would have to make qualitative judgement about what settled cohabitation is.
Fleming v Fleming 2003- Atkinson applies not withstanding social changes re cohabitation.
Lump sum order (capital order) S.23(1)
S.23(3)(c): can be ordered to be paid in instalments
S.23(6): can incur interest
A lump sum order in favour of a spouse is a final order, it cannot be varied subsequently
, BUT
S.23(4) MCA 1973: A lump sum order in favour of a child is not final. The power of the court to make
an order in favour of a child of the family shall be exercisable from time to time.
3. Property adjustment orders
Transfer of property order S.24(1)(a)
A spouse may be ordered to transfer property to the other spouse/ any child of the family
A spouse may be ordered to transfer a share in the matrimonial home. Other property may also be
transferred. A spouse may be ordered to transfer the home with the other spouse agreeing to forgo
claims for maintenance. A spouse may be ordered to transfer investments so that the other can live
on the income.
Settlement of property order S.24(1)(b)
Settlement of property to which a spouse is entitled can be ordered for the benefit of the other
spouse/ children.
E.g if the wife is the primary carer of the children, the order may allow the wife to enjoy the use of
the house with her children during their dependency but enables the house to be transferred back
to the owner (the husband).
Order for the sale of property S.24A(1)
If a financial or property adjustment order has been made, the court may order the sale of the
property in the proceeds of sale of which either/both spouses has a beneficial interest.
Enforcement mechanism in cases of non-compliance. Proceeds of sale are paid to the spouse who
was entitles to a payment.
4. Pension sharing orders
S.24B MCA 1973
Offsetting
Compensate for the loss of pension by making transfer of property orders or ordering a larger lump
sum to be paid.
Pension attachment
Once the pension becomes payable, a part of the pension income must be made available to the
other party.
Pension sharing
Party of the pension fund can be allocated to the other spouse.
FINANCIAL/ PROPERTY ORDERS ON DISSOLUTION OF A CIVIL PARTNERSHIP
Same orders available
Financial order S.2(1) Sch 5 CPA 2004
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