In cases of ancillary relief, the courts have taken wide approaches to decide what would be the most appropriate financial ending of a marriage. To help judges make this decision, the courts consider the factors mentioned in section 25(2) of the Matrimonial Causes Act 1973. In the current law there are many approaches as to what the court can take to ensure that the objective of fairness is applied in each case; as a result of this, the rules in statute are not “mechanically applied”; leading to wide discretion. In respect to flexibility, the approach is mainly problematic as the factors are too wide leading to individual interpretations, which can disregard the principle of fairness; established from the yardstick of equality rule. Whilst,
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This is seen in the case of M v M, where a prenuptial agreement between the parties was existing; however this reduced the wife’s final award. The courts applied the principle used in K v K where the courts “set out pertinent factors which were necessary to determine whether the agreement was binding or influential”. Having considered the questions, the courts held the wife’s entitlement to a lump sum of £125,000. The agreement had been settled for a lump sum of “£100,000 within 5 years of marriage”. The judges had to take look at the agreement under s25 (2)(g) MCA 1973 as it would be inequitable to disregard the agreed provisions. However, held that the dispute over the primary agreement did not prohibit “an application for periodical payments” as it would not be fair on the basis of her contribution being the primary carer of the child; thus an award satisfying the need were settled upon. Therefore, the argument stands, with a change of circumstance a couple especially if there are children cannot be bound to stand by the agreement as it is unlikely the parties would have thought of the future. If one party decides to give up work to be the primary child carer, this would have a big impact on their earing capacity. As a result, even with a prenuptial agreement in place, the principle of fairness would be ignored; ultimately relying on the courts to interpret a suitable financial
This is seen in the case of M v M, where a prenuptial agreement between the parties was existing; however this reduced the wife’s final award. The courts applied the principle used in K v K where the courts “set out pertinent factors which were necessary to determine whether the agreement was binding or influential”. Having considered the questions, the courts held the wife’s entitlement to a lump sum of £125,000. The agreement had been settled for a lump sum of “£100,000 within 5 years of marriage”. The judges had to take look at the agreement under s25 (2)(g) MCA 1973 as it would be inequitable to disregard the agreed provisions. However, held that the dispute over the primary agreement did not prohibit “an application for periodical payments” as it would not be fair on the basis of her contribution being the primary carer of the child; thus an award satisfying the need were settled upon. Therefore, the argument stands, with a change of circumstance a couple especially if there are children cannot be bound to stand by the agreement as it is unlikely the parties would have thought of the future. If one party decides to give up work to be the primary child carer, this would have a big impact on their earing capacity. As a result, even with a prenuptial agreement in place, the principle of fairness would be ignored; ultimately relying on the courts to interpret a suitable financial