When a couple divorces, and there are children involved, the law prioritises their well-being above all other factors. Section 25(1) of the Matrimonial Causes Act 1973 explicitly states that the first consideration of the court is the welfare of any child of the family who has not reached the age of eighteen. This principle underscores that the financial settlement must, first and foremost, cater to the needs of the children.
• What Does “Welfare” Mean? The court considers the children’s needs in a holistic sense. This includes:
o Financial Needs: Ensuring adequate housing, education, healthcare, and general upkeep. This may involve setting up trust funds, ordering child maintenance payments, or allocating a larger share of the family assets to the parent with primary care.
o Housing: Providing a stable and suitable home environment. The court might order the sale of the family home and the purchase of two smaller properties to accommodate both parents and the children.
o Education: Covering the costs of schooling, including private education if that was the standard during the marriage.
o Emotional Well-being: While the financial settlement focuses on monetary needs, the court recognises the emotional impact of divorce on children. The financial arrangements should, as much as possible, minimize disruption to their lives.
• How the Court Addresses Children’s Needs: The court will consider the following factors when making decisions:
o The Children’s Financial Needs: The court will assess the children’s current and future financial needs, including housing, education, and healthcare.
o The Parents’ Financial Resources: The court will evaluate the income, earning capacity, and assets of both parents to determine how best to meet the children’s needs.
o The Children’s Standard of Living: The court will aim to maintain the children’s standard of living as much as possible, considering the lifestyle they enjoyed before the divorce.
o Any Physical or Mental Disability of the Child: The court will take into account any special needs of the children and make appropriate financial provisions.
• The “Clean Break” Principle and Children: While the court generally aims for a “clean break” between the divorcing spouses, this is often not possible when children are involved. The financial ties between the parents may need to continue for many years to ensure the children’s welfare.
• Examples of Financial Orders for Children:
o Child Maintenance: Regular payments from one parent to the other to cover the children’s living expenses.
o Property Orders: Transferring or selling property to provide housing for the children.
o School Fee Orders: Directing one or both parents to pay for the children’s education.
o Trust Funds: Setting up funds to provide for the children’s future needs.
Fairness
In determining a fair outcome in divorce settlements, the court considers all the factors outlined in Section 25 of the Matrimonial Causes Act 1973. However, there isn’t a strict formula; instead, the court exercises its discretion to weigh each factor according to the specific circumstances of the case.
• No Fixed Formula: The court doesn’t apply a mathematical formula but aims for a fair and equitable settlement based on the unique facts of each case.
• Welfare of Children First: The welfare of any children under 18 is the court’s primary consideration.
• Equal Sharing as a Starting Point: Particularly in longer marriages, the court often starts with the principle of equal division of matrimonial assets.
• Needs Override Equality: The court may deviate from a 50/50 split if one party has greater needs, such as housing or childcare responsibilities.
• Contributions Valued Equally: Both financial and non-financial contributions (e.g., homemaking, raising children) are considered equally valuable.
• Conduct Only in Exceptional Circumstances: The conduct of a party is only considered if it would be inequitable to disregard it (e.g., financial misconduct).
• Aim for Independence: The ultimate goal is to give each party an equal start on the road to independent living.
• Flexibility and Discretion: Judges have broad discretion to consider all relevant circumstances and weigh each factor accordingly.
• Overall Fairness: The court’s overarching aim is to achieve a fair outcome, considering all the circumstances of the case.