Each case depends upon its own particular circumstances but the following principles may be of assistance in illustrating how the court exercises its powers.
Maintenance
An Order will only be made where sufficient income is available from which payment can be made.
In the case of a long marriage, where one party has never worked, it is almost certain that an Order will be made by the court requiring maintenance payments for that party.
In the case of a short marriage where both parties are self-sufficient, it is unlikely that any maintenance Order will be made.
In a case where one party has the continuing responsibility of young children, the effect of which is to restrict their earning capacity, it is likely that there will be continuing financial provision, provided that sufficient funds are available.
If appropriate, the court may restrict the period during which the maintenance payments are to be made and may also make a declaration preventing the recipient from making any application to the court to extend the term of the payment. This is A Section 28 (1) (a) Declaration
The amount of maintenance ordered depends upon the income of both parties and their financial responsibilities. There is no mathematical formulae to apply but the objective of the exercise will be to achieve a fair solution. One possible area of controversy may be the extent to which one party has an earning capacity which is not being utilised effectively. Pending any final hearing it is likely that the status quo will be maintained.
Capital
A variety of orders can be made by the court for capital provision depending upon the value of the assets available for distribution. Such orders can only be effective from the date of the Decree Absolute and can include any of the following:
- An Order for the sale of any property.
- An Order allowing one party to remain living at the matrimonial home indefinitely.
- An Order transferring property into the sole name of one party.
- An Order permitting one party to remain living at the matrimonial home until the children are no longer dependent at which time the property will have to be sold.
- An Order requiring one party to make a lump sum payment to the other, for example, to help the receiving party to re-house him/herself.
The objective of the Judge will be to achieve a fair distribution of capital and in making his/her Order the Judge will consider the overall terms of settlement including any provision from pensions and income payments.
Again, the outcome of the application cannot be predicted with mathematical accuracy because it involves the exercise of judicial discretion.
