Applications for financial provision — overviewGeneral considerations

Applications for financial provision under the Matrimonial Causes Act 1973 (MCA 1973) should be made in the first instance in the prayer in the petition. Corresponding provisions are contained in the Civil Partnership Act 2004 (CPA 2004). Proceedings issued prior to 6 April 2011 are subject to the Family Proceedings Rules 1991 and the transitional provisions of the Family Procedure Rules 2010 (FPR 2010). Proceedings issued on or after the 6 April 2011 are governed by the FPR 2010.

A Form A is issued to indicate a party’s intention to proceed with an application. Pursuant to MCA 1973, there are nine different orders that can be made as between spouses. They include:

• maintenance pending suit

• periodical payments

• a lump sum order

• property adjustment

• pension sharing and pension attachment

All are available following petitions for divorce, judicial separation, nullity, civil partnership dissolution or a civil partnership separation order except for pension sharing, which is not available on a petition for judicial separation or a civil partnership separation order.

The court has jurisdiction to make these orders at any point on or after the pronouncement of a decree nisi or conditional order (in divorce, dissolution and nullity), or the granting of a decree of judicial separation or separation order.

There is no limitation period for bringing an application. However, the court has no jurisdiction to make orders in favour of a party who has remarried or entered into a civil partnership unless the application is made before the remarriage/civil partnership. No order for periodical payments can survive a party’s remarriage/civil partnership in any event.

General principles

The court decides how to exercise its jurisdiction to make the above orders using the factors set out in MCA 1973, s 25. There is no hierarchy to these factors. Authority expressly holds that, in each individual case, different factors will carry different weight. The court must also consider whether to impose an immediate or deferred clean break so as to sever the financial obligations the parties have toward each other.

Needs of the children of the family

The court’s first consideration is the welfare of any child of the family who has not attained the age of 18.

Section 25(2) checklist

Section 25(2) of the MCA 1973 states that the court must in particular have regard to the matters set out in a checklist set out therein, including:

• the assets of the parties

• the needs of the parties