After divorce proceedings have commenced either party can apply to the court for maintenance and/or capital provision.
The objective of the court will be to achieve a fair solution in dealing with such an application. Before making any Order, the Judge will need to analyse what are referred to as the Section 25 Factors.
Section 25 Factors
These are the matters which the court will consider when dealing with any application for financial provision. They are known as the Section 25 factors because they are set out in Section 25 of the Matrimonial Causes Act 1973. First consideration has to be given to the interests of any children under the age of 18, but the Judge also has to consider:
a) The income, earning capacity, property and other financial resources which each party has or is likely to have in the future including any increase in earning capacity that capacity which could be reasonably expected.
b) The financial needs, obligations and responsibilities that both parties have or are likely to have in the future.
c) The standard of living enjoyed by the family before the breakdown of the marriage.
d) The age of you and your partner, the length of the marriage and any physical or mental disabilities that either party has.
e) The contributions that each partner has made or is likely to make towards the welfare of the family.
f) Conduct where it would be inequitable to ignore it.
g) The value to each partner of any benefit, for example a pension, which the partner might lose following divorce. In the case of children the court has to consider:
h) The financial needs of the children.
i) The income, earning capacity, property and other financial resources of the child.
j) Any relevant disabilities.
k) The manner in which the children were being educated and the manner in which the parties expected the children to be educated.
l) Factors a), b), c), d) above.
m) If any other party has assumed responsibility for the children’s maintenance, the amount of payments being made, and the length of time over which such payment was made. Also whether in making such payments that other party did so knowing, if applicable, that the children were not theirs.
Clean Break
The Judge also has an obligation to consider whether or not to impose a clean break terminating the financial obligations of each party towards the other. In such circumstances a party's entitlement to maintenance would end either immediately or within a finite period of time specified by the Order but such an Order is usually only made if the Judge is satisfied that the party concerned can adjust to the new circumstances without suffering undue hardship.
