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Section 25 of The Matrimonial Causes Act
Simply viewed, the divorce process results in the severance of marriage ties. But little is emphasised of the fact that it involves the more important issue of changes in the property relations between the spouses, and the division of the marital assets. This entails more than the simple act of distributing the properties between the parties as this is governed by Section 25 of the Matrimonial Causes Act 1973.
From a layman’s standpoint, court proceedings can be quite confusing with regard to the complexities of legal jargon. So, let us discuss Section 25 of the Matrimonial Causes Act 1973 in simple terms.
It would help to know that the law is generally divided into two parts: the first part which establishes the grounds for divorce, and part two, which lays down the rules on how the courts shall deal with property and financial issues.
While the courts are largely guided by decided cases and existing law on the matter, Section 25 of the Matrimonial Causes Act 1973 specially lays down the basic guidelines in the settlement of matrimonial assets and financial matters. In particular, it enumerates the principles that must be considered by the court in exercising its power to issue financial provision orders, property adjustment orders, and ancillary orders for the sale of property, as provided in Sections 23, 24, and 24A, respectively.
So what are those matters that the courts must take into account in issuing those orders under Section 23, 24 and 24A of the law?
- 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;
- Any award made by the court concerning income, earning capacity, and property must rest on factual circumstances. But you must take note that in practice, courts no longer issue such order except for compelling reasons.
- The financial needs, obligations and responsibilities where each of the parties to the marriage has or is likely to have in the foreseeable future; both parties at this point have varying needs. The court must now balance the competing needs of both parties.
- The standard of living enjoyed by the family before the breakdown of the marriage;
- The age of each party to the marriage and the duration of the marriage; Usually, the court will adopt the view that there should be clean break between the parties. This would be easy if both parties earn their own living. Furthermore, a longer marriage is perceived to be more difficult because the divorce court would have to deal with strict property rights. On the other hand, for a young couple, it may be appropriate to transfer the matrimonial home into the sole name of the wife - especially where there are young children.
- Any physical or mental disability of either of the parties to the marriage; in actual practice, this is not much regarded because having a mental or physical disability would lower your earning capacity and perceived future needs. In taking this factor into account, individual and personal circumstances of each party must be considered.
- The contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family; this simply means that contributions made the wife, by doing domestic work, can be taken into account in the same way that the husband’s financial contribution is given leverage by the court.
While these matters may be explained in simple terms, actually doing it is not a walk in the park. Divorce proceedings being a legal issue, is best dealt with the help of an experienced solicitor who is equipped with the education, experience, knowledge and skills needed to work on your case up to its finality.