Section 25 Factors
The Courts in family proceedings have huge discretion. They are obliged to take into account the factors set out under Section 25 of the Matrimonial Causes Act 1973 which are:
(1) It shall be the duty of the Court in deciding whether to exercise its powers under section 23, 24 or 24A above and, it so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
(2) As regards the exercise of the powers of the Court under section 23(1) (a), (b) or (c), 24 or 24A above in relation to a party to the marriage, the Court shall in particular have regard to the following matters:
(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the Court be reasonable to expect a party to the marriage to take steps to acquire;
(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
(c) the standard of living enjoyed by the family before the breakdown of the marriage;
(d) the age of each party to the marriage and the duration of the marriage;
(e) any physical or mental disability of either of the parties of the marriage;
(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the Court be inequitable to disregard it;
(h) in the case of proceedings for divorce or nullity or marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
(3) As regards the exercise of the powers of the Court under section 23(1)(d), (e) or (f), (2) or (4), 24 or 24A above in relation to a child of the family, the Court shall in particular have regard to the following matters:
(a) the financial needs of the child;
(b) the income, earning capacity (if any), property and other financial resources of the child;
(c) any physical or mental disability of the child;
(d) the manner in which he was being and in which the parties to the marriage expected him to be educated or trained;
(e) the considerations mentioned in relation to the parties to the marriage in paragraphs (a), (b), (c) and (e) of subsection (2) above.
(4) As regards the exercise of the powers of the Court under section 23(1)(d), (e) or (f), (2) or (4), 24 or 24A above against a party to a marriage in favour of a child of the family who is not the child of that part, the Court shall also have regard:
(a) to whether that party assumed any responsibility for the child’s maintenance, and if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time foe which that party discharged such responsibility:
(b) to whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own;
(c) to the liability of any other person to maintain the child.
Section 25A
Exercise of Court’s powers in favour of party to marriage on decree of divorce or nullity of marriage.
1 It shall be the duty of the Court in deciding whether to exercise its powers under section 23, 24 or 24A above and, it so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
2 As regards the exercise of the powers of the Court under section 23(1) (a), (b) or (c), 24 or 24A above in relation to a party to the marriage, the Court shall in particular have regard to the following matters:
a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the Court be reasonable to expect a party to the marriage to take steps to acquire;
b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
c) the standard of living enjoyed by the family before the breakdown of the marriage;
d) the age of each party to the marriage and the duration of the marriage;
e) any physical or mental disability of either of the parties of the marriage;
f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the Court be inequitable to disregard it;
h) in the case of proceedings for divorce or nullity or marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
(3) As regards the exercise of the powers of the Court under section 23(1)(d), (e) or (f), (2) or (4), 24 or 24A above in relation to a child of the family, the Court shall in particular have regard to the following matters:
a) the financial needs of the child;
b) the income, earning capacity (if any), property and other financial resources of the child;
c) any physical or mental disability of the child;
d) the manner in which he was being and in which the parties to the marriage expected him to be educated or trained;
e) the considerations mentioned in relation to the parties to the marriage in paragraphs (a), (b), (c) and (e) of subsection (2) above.
(4) As regards the exercise of the powers of the Court under section 23(1)(d), (e) or (f), (2) or (4), 24 or 24A above against a party to a marriage in favour of a child of the family who is not the child of that part, the Court shall also have regard:
a) to whether that party assumed any responsibility for the child’s maintenance, and if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time foe which that party discharged such responsibility:
b) to whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own;
c) to the liability of any other person to maintain the child.
Section 25A
Exercise of Court’s powers in favour of party to marriage on decree of divorce or nullity of marriage.
1) Where on or after the grant of a decree of divorce or nullity of marriage the Court decides to exercise its powers under section 23 (1) (a), (b) or (c), 24 or 24A above in favour of a party to the marriage, it shall be the duty of the Court to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon after the grant of decree as the Court considers just and reasonable
2) Where the Court decides in such a case to make a periodical payments or secured periodical payments order in favour of a party to a marriage, the Court shall in particular consider whether it would be appropriate to require those payments to be made or secured only for such term as would in the opinion of the Court be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence on the other
party.
3) Where on or after the grant of a decree of divorce or nullity of marriage an application is made by a party to the marriage for a periodical payments or secured periodical payments order in his or her favour, then, if the Court considers that no continuing obligation should be imposed on either party to make or secure periodical payments in favour of the other, the Court may dismiss the application with a direction that the applicant shall not be entitled to make any further application in relation to that marriage for an order under section 23(1) (a) or (b) above.
Inevitably some of these factors will be given more weight than others depending upon the individual circumstances. The Court has a duty to deal with all cases fairly and in order to be able to do this it needs to have full and up to date information from both parties. This is why it is important that both parties keep the Court and their solicitors up to date with their financial position.
The Court will not take into account the behaviour of either party unless it is so extreme that it would be inequitable to ignore it, nor will it take into account the reason why the marriage broke down in the first place when considering the finances.
The contents of this fact sheet are general principles and do not constitute legal advice. Every case is different and you should seek independent legal advice in relation to your specific circumstances.