The Courts’ Discretion under Section 25 Of The Matrimonial Causes Act
Introduction
The Matrimonial Causes Act empowers Courts to make a wide range of orders pertaining financial provision related to divorce proceedings. One of the most instrumental segments that make this possible is Section 25 of the Act. This paper intends to evaluate the stipulations of the section thoroughly and make a critical evaluation of whether the provision gives room for Judicial discretion which is unfettered. The paper will seek to account for the discretion given to Courts by dint of this Section in light of decided cases and commentary that has been made on the same by highly qualified publicists.
An Overview of the Provision
Section 25 in the first instance stipulates that it is the duty of the Court to first consider the welfare of the minor while deciding whether to exercise its power and if so, in what manner it would execute its authority. Subsection 2 further allows the courts to exercise discretion in matters falling within Section 23 (1) a, b, c as well as Section 24 and in doing this a number of factors have to be considered. These factors include the income of the parties; the financial needs in question; the standard of living experienced before the marriage; ages of parties and duration of marriage; disability and general conduct of both parties.
Subsection 3 generally deals with the powers of the Court in matters relating to provision for a child. Some of the considerations that a Court has to make while deliberating on these matters include the real financial needs of the minor; the income or financial capacity of the child if it exists; any disability of the child, and the standards by which he was being educated before the parents’ fall out. In addition to this the Section further requires that Courts look at whether the party being sued had shown any intention of taking responsibility for the child; whether the party knew that child was not his or hers and whether any other person could be liable of maintaining that child.
Analysis of the powers given by Section 25
The Matrimonial Causes Act is a consolidated set of provisions set out to govern financial consequences of any divorce proceedings. Much as the Statute mandates the Courts to make certain orders and goes ahead to stipulate considerations that a Court would make in doing so; it is blatantly unclear what the said orders and considerations ought to achieve. Given this silence, the courts have since adopted any interpretation that suits their view of the dispute. It is the position of this paper that Section 25 specifically gives Judges inordinate unfettered discretion while deciding on financial matters resulting from divorce proceedings.
The Act in its original form had a provision in which the major objective of the Court was to try and restore the disputants or aggrieved parties to positions in which they would have been had the marriage not broken down. However, with such an objective no longer in operation the Judges are thus left with broad choices to make in light of Section 25 but there is no precise guidance of what such choices must achieve. Owing to this, the discretion given to Judges in this Section is massive and they are simply at liberty to make any orders as they please.
In light of this, the Courts therefore devised their own criterion which was that an application would generally be awarded if it could be proven that the other party’s financial income could sustain the order to pay for the reasonable requirements by the applicant. This implies that the financial needs of the applicant were loosely assessed alongside the previous marital standard of living before a determination was made regarding the amount to be awarded. At this point, Courts were confronted with two major dilemmas. On one hand, in relatively low income establishments; they had to balance between reasonable requirements in question against the financial capacity of the respondent. However, in extremely wealthy families, the biggest concern of the Court was to establish a ceiling on the possible awards that could be given. For instance, in the case of Duxbury v Duxbury, a formula was devised in which an applicant could be awarded money which if invested wisely would be able to sustain them for the entire lifetime. There were obvious flaws in this approach since reasonable requirements criterion would result in clear injustice. For instance, in the case of Dart v Dart, Gibson LJ observed that an award of £9m to a loyal wife of 14 years out of a possible £400m in wealth was really untenable.
The Court of Appeal has since employed the sharing principle in subsequent decisions after White owing to the vast discretion at its disposal. A second look at the conjoined appeals of Miller v Miller and McFarlane v McFarlane, by the House of Lords has subsequently escalated the debate on the discretion of the Courts. In this review, the views of their Lordships indicated that a three main factors formulae should be considered after discerning the nature of application in question. The three principles that have to be adhered to are compensation, sharing ad taking care of the financial needs. This approach introduces another concept that a party has to be compensated the financial equivalent of what they would have earned had they not been committed to making the marriage a success. For instance, in McFarlane, the lady applicant gave up her career as a solicitor in order to take care of the Children and this emerged to be a great consideration in the ultimate decision of the Court.
Considering the fact that there have never been any precise regulations guiding the Court about how to make these awards; the practice was that there was imposed a ceiling of the highest amount that can be awarded to any party at £15m. However, seeing the disparity and perceived injustice that would be occasioned in high profile cases with tremendous amounts involved; this practice could not stand any more. This was actuated by the application of the tests of equality by the Courts. In the same breath, the Court has also factored in the possibility of one party making stellar contributions to the estate of the couple. In this case, if a party has exhibited exceptional talent and commitment to increasing the couple’s assets; then the award that could be made must range from 55%:45% to 33.33%:66.67%. The practice is that no more can be awarded in excess of the aforementioned ratios.
In the case of Radmacher v Garantino, the opinion of the Judges implied that Section 25 has to be considered in almost all circumstances including where there is a Matrimonial Property Agreement. That means that a prenuptial agreement could be rendered obsolete by the financial provisions clauses. If a party has displeasure in the usage of prenuptial agreements; they many make an application to court to have the financial provisions clauses under Section 25 be treated as the yardstick of measuring the amount of provisions. This majorly happens if the Court deems it a great travesty if the contents of the agreement are enforced to the latter. This also highlights the amorphous discretion that Courts have since assumed since it is not clear what could be the standard measure of what is fair and what is not fair.
Another illustration of how vast the discretion of Courts is in light of Section 25 of the Matrimonial Causes Act is the fact that there is a disparity in the quantum of awards that are given depending on the geographical location within which an application is lodged. Aside from the inconsistency over the amount awarded, there is also a lot of controversy about the duration for which a spouse should be supported by the award given. These two issues are core to any Judicial system. At all times, litigants have a right to be able to predict the nature of awards that can be awarded at different levels of Courts in the country. In addition to this, it is also prudent for the system to assure the parties that they expect the projected award to be in force for relatively coherent amount of time. However, given the fact that there are no caps, directions or regulations that are straight forward; most of the causes under Section 25 of the Act take relatively long periods to be dispensed with and the duration varies with the geographical location of the Court in question. In addition to this, for cases involving big money estates, the amounts that have been awarded in different locations also put into question how Section 25 has to be interpreted by the Judges.
Conclusion and Recommendation
Marriage is generally a civil relationship in which the parties to it make critical financial choices in which case while some partners may be encouraged to further pursue their financial dreams’, others’ dreams may be thwarted by their commitment to the marriage. Parties to a marriage make salient decisions at the start of the relationship and such could greatly influence the rest of their lives. While others entirely give up their careers to concentrate on raising the children and maintaining the marriage; others forego growth at the workplace or promotions because they would not opt to take a transfer at the expense of their marriage or the interests of children and spouse. Thus, it is incumbent upon Courts to consider a number of factors from both a legal and social perspective so as to come up with the most favorable verdict at the end of the day.
The first factor that should cloud the Judges’ mindset is the aspect of compensation. If the applicant can prove that they sacrificed their ability to prosper in a bid to strengthen the marriage, then it is only fair to compensate them by meeting their needs subsequent to a divorce. Secondly, when married persons officially divorce; it means that a cord is broken or a merger is terminated. However, the process of detaching the two is not a spontaneous exercise. It takes a while for the financially weaker party to stabilize. Thus, given that the two once shared a life together, it is plausible to cater for the needs of a party and to have them stabilize with the resources of the other who has thrived upon the anchor of the weaker one.
The factors listed in section 25 of the Matrimonial Causes Act should be used as the means and not the end. They are simply interpretative guidance frameworks to direct Judges on how decide on the appropriate award. The objective that has to be achieved by the Section is compensation and stabilizing the party who is most adversely affected financially by the divorce proceedings. Therefore, in my opinion Section 25 of the Matrimonial Causes Act 1973 is a good provision; only that there has to be added another Clause that sets out the objective that must be achieved by the numerous discretionary factors listed.
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