Mike,
The problem as you know is that the guidelines for ancillary relief are unclear and open to interpretation.
The percentage split shifts based on scale of income:
At high end we see that it is not uncommon for partner of a very high earner to only 30-40% of assets, due to special contribution of super high earner.
In middle with enough assets/income to satisy needs of both parties we see a 50:50 split.
At bottom (which is large majority of cases) there is not enough to go round and be fair to both parties so based on prioritising kids (and therefore PWCs)
needs the low earner PWC may be awarded > 50% , perhaps 60% or 70%.
From Family Law Week's review of Charman appeal:
"
- Equality of division is no longer just a yardstick or check, per White; it is now a principle of financial provision law (para 65 of the judgment).
- Since property should be shared equally unless there is good reason to depart from equality, any departure is not from the principle but takes place within the principle (65).
- English financial provision law is a two-stage process; first, what is the available property, income and other resources, secondly how should they be distributed in accordance with section 25 and case law (67)
-
Where needs of each is greater than sharing, the former prevails; where needs are met by sharing, the latter prevails (73)."
The full article which is very interesting:
www.familylawweek.co.uk/library.asp?i=2980
Mike,
Having read a couple of your posts you may be interested in H vs H which is a recent case that contains some very interesting statements which give hope for those stuck with seemingly endless maintenance obligations:
www.familylawweek.co.uk/library.asp?i=2880
96. In this context it seems to me important to remember that a non-discriminatory, equal and fair approach is two-sided and an approach that has to be assessed and applied against the background and nature of a marital partnership. Therefore it seems to me important to ensure that the pendulum does not swing too far from:
i) a discriminatory and unfair award based on "reasonable requirements" and a Duxbury capital sum giving the ex-wife enough to meet those requirements until the date of her death assessed on an actuarial basis and nothing more, to
ii) an award that is unfair and discriminates against the party that has made the main direct financial contribution because it fails to recognise that:
(a) the marital partnership is terminable at any time and there is not a legitimate expectation of long term economic parity by reference to what the position of the lower earner would have been if the marriage had not broken down,
(b) the nature and effect of the factors that have gone to make up the earnings and earning capacity of the main earner,
(c) the aim is self-sufficiency and to give each party an equal start (my emphasis) on the road to independent living (see Baroness Hale at paragraph 144) having regard to their own talents and attributes, and their obligations and economic disadvantages flowing from the marriage (e.g. the wife continuing to be the primary caretaker of the children),
(d) in general the assumption is that the marital partnership does not stay alive for the purpose of sharing future resources unless that is justified by needs or compensation and that if a capital division is enough to provide for need and compensation then there should be no further financial provision (see Baroness Hale paragraphs 144 and 154), and
(e) the provision awarded should enable a gentle transition for the party who made the domestic contribution from the standard of living enjoyed during the marriage to the standard that she could expect as a self-sufficient woman (see Baroness Hale at paragraph 158, in the context of the Miller case) and in my view the length of the marriage and the role of an ex-wife as the primary caretaker of the children of the marriage would be factors to be taken into account in determining the amount of the provision to meet that transition.
Food for thought.
