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Financial Remedies on Divorce and Dissolution Seminar 5
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Detailed seminar notes for financial remedies on divorce and dissolution, including a plan to a problem question.
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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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S5 / Financial Remedies on Divorce and DissolutionTips on how to approach the problem question:
BREAK IT DOWN: take it step by step, look back through your notes. The focus in this question
is on financial remedies on divorce. You are providing advice to Yves as a family lawyer.
Start out by highlighting the facts in the scenario which relate to each of the s.25(2) MCA 1973
factors in turn. Make sure you quantify the total resources. Explain the approach taken by the
courts in relation to specific factors, using relevant case law.
Then discuss the three principles developed in White and Miller/McFarlane. Which principle will
take precedence in this case? Is it a needs or equal sharing case and if the latter, are there
circumstances which would justify departure from a 50/50 share of the capital assets?
Now consider the menu of orders and what order or orders would be appropriate here. Keep in
mind the importance of a clean break.
Make sure you apply the law, not just cite the statutory provision and cases. Make sure you
explain: why? What is it about these circumstances that makes it relevant? Draw inferences
from the facts as stated in the question.
Come to a conclusion – is it likely that R will receive a greater share of the assets? If so, why?
What is a fair outcome in this case?
This area of law is very much based on judicial discretion.
3 basic categories:
● Money orders
● Property orders (former matrimonial home)
● Pension orders
The older the person is in the PQ, the less their future earning capacity will be. Also, when
someone has been caring for children and was out of work because of it, you must consider
how easy it would be for them to go back to work and earn.
Problem Q:
Roland met Yves on a skiing holiday in the Alps in winter 2002. Roland is an architect and
Yves, a French national, worked for a famous champagne house. They had a long-distance
relationship for two years until Roland was seconded by his firm for six months to New York.
Roland suggested that Yves give up his job and accompany him. Their relationship blossomed
in New York and when it was time to return to England, Roland proposed. Roland and Yves
entered into a civil partnership in 2006.
, Roland and Yves set up home together buying a house in the countryside outside Harrogate
worth £950,000. Roland contributed £650,000 from the sale of his previous house while Yves
contributed £100,000 (his inheritance from his grandparents) with the balance of £200,000
being met through a mortgage. The house needed major refurbishment and Yves project
managed this while Roland continued working. Yves had excellent taste and when the builders
finished, he took charge of the interior decoration. Yves spent all his savings (£60,000) on
exquisite and high class decoration and furnishings.
With Roland’s encouragement and financial backing, Yves set up a business, specialising in
interior decoration and initially this prospered. Over the years Roland and Yves lived
comfortably, taking two long-haul holidays each year and numerous weekend breaks, dressing
fashionably, driving top of the range convertible sports cars and eating out at top restaurants on
a regular basis. In 2015 Roland and Yves converted their civil partnership into marriage.
However Yves found it difficult to settle in Yorkshire and started eating and drinking to excess.
He lost interest in the business and the number of clients declined due to Yves’s unreliability.
Roland found the changes in Yves’s behaviour difficult and the relationship became stormy. Six
months ago Roland started chatting to Nattapong, a Thai masseur, over the internet. Last week
he announced to Yves that he was no longer satisfied having “cybersex” with Nattapong and so
he intended to fly to Thailand to meet Nattapong in person. Despite Yves’ tears and pleas to
give their relationship “another chance”, Roland departed for the airport. Yves feels betrayed by
Roland and has reluctantly concluded that the relationship is over.
In terms of the parties’ financial position, Roland earns around £200,000 per year, his pension is
worth £800,000 and he has around £150,000 in savings. When his business was doing well,
Yves would draw down around £60,000 per year as a salary. More recently the business has
made a loss and there are outstanding debts of £80,000. Yves has no savings and no pension
provision. Roland is 56 and had planned to retire in four years’ time at 60. Yves is 44 and with
the breakdown in the relationship, he would like to return to France. The outstanding mortgage
on the home is £120,000 and the home is now worth £1,245,000.
Advise Yves as to the principles the court will use in assessing financial provision for Yves and
as to the likelihood that Roland will receive a greater share of their assets.
s.25(2) MCA 1973 Factors (Spousal support)
● (a) = resources
○ ‘income , earning capacity, property and other financial resources.’
○ Miller; McFarlane (2006) = includes matrimonial and non-matrimonial property.
○ Yves and Roland’s matrimonial assets (still matrimonial when brought in by only
one of the parties):
■ Harrogate countryside home (now worth £1,245,000, with a mortgage of
£120,000)
■ High class furnishings and decoration (£60,000)
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