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Family Law

Given the fact that a 'fair outcome' in a claim proceeding is influenced by the legislative coverage, the court's approach in interpreting the provisions and the complexity rules and procedures, the review of legal developments shall essentially consider the major changes to the legislation, the major developments in case law as well as the changes to the rules and procedures towards achieving a fair outcome for the parties.
Ancillary relief - the apportioning of financial assets and income of the parties to the marriage- remains one of the major issues to be resolved on divorce. The basic law and judicial considerations for ancillary relief are contained in Part II of the Matrimonial Causes Act (MCA) 1973, amended by the Matrimonial and Family Proceedings Act 1984 imposing a 'clean break' obligation on the courts. Statutory improvements have been impacted the provisions, a review of which shall be endeavoured.
The 1973 Act provided courts with the power awar...
rders, enabling capital division of assets.4 While this by itself was 'revolutionary reforming measure,'5 as traditionally ancillary relief was limited to only income, the Act made no mention of the pension rights of the spouses, except merely stating it as a 'benefit' for consideration while dividing family assets. Considering the fact that during the marriage both parties would have looked to it as a joint fund for their eventual retirement, the law proved unfair to the party who lost the pension rights on divorce (usually the wife).6 The situation was improved by the 1995 Pension Act and the subsequent amendment in 1999.
The 1995 Pensions Act had conferred courts with the power to earmark pension rights on divorce, 7 inserting sections 25B to 25D of the MCA 73. However it presented crucial drawbacks that the ex-spouse could not get her or his share of the pension until the pensioner retired, and all payments ceased when the pensioner died.8 The Welfare Reforms and Pensions Act (WRPA) 1999, which became effective since December 1, 2000,9 amended the provision introducing pension sharing order, which could take effect at the time of the divorce itself, as well as requiring an earmarking order to be expressed as a percentage.10 The legislative introduction has been largely successful in a more equitable apportioning of income as in Burrow v Burrow, where the former spouse was issued an earmarking order of half the tax-free lump sum and half the husbands pension income 11.
With these developments in the last decade courts and judges have gained wide sweeping powers in divorce, nullity and judicial separation proceedings to make a number of financial relief orders, so as to provide a fair outcome to either party to the proceedings including lump sum Orders, property ...Show more

Summary

Reconciling fairness in ancillary relief applications has been, and continues to be, one of the most difficult problems facing courts and judges in England and Wales when deciding divorce cases. The highly discretion-based ancillary financial relief system proposed by the English legal system1; the difficulty of fairly balancing easily quantifiable financial contributions to family life against non-financial ones such as homemaking and childcare2; complexity of property valuation and adjustment issues in divorce cases not to mention the changing dynamics of marriage relationships3 have made fair redistribution of financial assets on divorce a daunting task to judges, while the legal advisers …
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Family Law Essay essay example
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