Most divorce cases that get reported tend to be so-called ‘big money’ cases. These are heard before higher courts where published judgments are more common and are subject to greater public and media scrutiny. It stands to reason that parties with a lot to gain or lose financially depending on the outcome of their case are more likely to take the calculated risk of expensive litigation.
Occasionally however cases involving lesser sums of money or where the parties have limited means and extensive debts get reported. These cases, like the case of ND v LD discussed below, show the delicate balancing exercise family judges must engage in when trying to find a fair settlement in cases where family finances are stretched.
ND v LD – A ‘Small Money’ Needs Case
Equal division of assets on divorce – what judges call the ‘yardstick of equality’ – might be the starting point in any divorce. But as we have discussed before, departure from this principle is not unusual. That’s because of the wide discretion judges have to decide each case on its own facts. In cases where family resources are limited, meeting basic financial needs of the parties becomes the priority.
In ND v LD the court had to decide whether an order for the wife to pay maintenance should be made and what percentage share of the wife’s pension should be apportioned to the husband.
The only assets of any value were pensions. The wife’s was valued at £140,000 and the husband’s at £10,000. The couple’s debts were more than their savings.
The husband sought maintenance equivalent to 40% of the wife’s income to meet his needs together with a share of the wife’s pension. The wife argued that the financial circumstances the couple found them in meant a maintenance order was not appropriate. She argued that the husband should receive 35% of the pension pot.
What Does the Law Say?
Judges decide these cases with reference to the so-called ‘s25 factors’. Briefly these are:
- The income, earning capacity, property and other financial resources which each of the parties to the marriage has
- The financial needs, obligations and responsibilities which each of the parties to the marriage has
- The standard of living enjoyed by the family before the breakdown of the marriage
- The age of each party to the marriage and the duration of the marriage
- Any physical or mental disability of either of the parties to the marriage
- The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family
- 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
- 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
What Did The Court Decide In ND v LD?
One of the most important cases in this area is the 2002 case of White v White. It makes clear that the starting point for financial remedy cases like this is equality. In ND v LD however the limited means of the parties meant that meeting their needs was highly relevant. The judge pointed out that in White the court had indicated that the purpose of the court’s discretionary powers under s 25 is to enable the court to make fair financial arrangements on or after divorce in the absence of agreement between the former spouses.
In practical terms this meant that in ND v LD the court decided as follows:
The court rejected the husband’s request for maintenance. It highlighted the fact that if he were to receive maintenance not only would he lose his means tested benefits but also the wife would be in deficit each month as regards her expenses. That would not be a fair outcome for the parties.
In the circumstances the court ordered that the pension be split 50:50, rejecting the wife’s suggestion that the husband should only receive 35% of the value. The judge drew attention to the fact that the wife has a future earning capacity while the husband’s mental health issues meant it was not at all clear whether he would ever work again. In addition, in what was a long relationship (30 years) the husband stayed at home to care for the couple’s children. He had effectively sacrificed his own career.
It’s unusual to see the details of a small money case like this spelt out so clearly. In our experience most financial cases where there are limited means get resolved before court – it simply makes no financial sense to pursue a court case the costs of which will likely swallow up a sizeable proportion of the available assets. ND v LD therefore provides a useful, if unusual insight into judicial approaches to cases where finances are stretched.