What does the family court take into account when making a Financial Order?

What is a financial order?

A financial order sets out how parties to a divorce shall manage and split their finances and assets after the divorce takes effect. It is an order that is made in financial remedies proceedings, also known as matrimonial finance proceedings, in the Family Court (

What is the law that governs financial orders?

Financial orders are governed by the Matrimonial Causes Act 1973. Section 25 of the 1973 Act sets out the factors to be considered by the Family Court when making a financial order. Accordingly, the Court will have regard to all the circumstances of the case, including:

  • the welfare of any (minor) child as a paramount consideration
  • 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
  • the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
  • 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, including any contribution by looking after the home or caring for 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 list above is not exhaustive (i.e. it does not contain everything that the court may take into account) and generally the court may apportion such weight to any particular consideration as it deems appropriate. However, in cases where there are no minor children involved, family law barristers often make legal arguments to the court based on three general principles namely: sharing, need and compensation.


The sharing principle is that, generally, the assets of a marriage should be shared, unless there a good reason for them not to be shared.

As family lawyers we notice a common misconception, namely that the court will divide or share property equally between divorcing parties. This is not necessarily the case because courts actually tend to apply the sharing principle only to certain types of property.

In previous decisions, the higher courts have held that “there is a real difference, a difference of source, between (1) property acquired during the marriage otherwise than by inheritance or gift …the matrimonial property, and (2) other property” (Miller v Miller, McFarlane v McFarlane, [2006] UKHL 24). The above distinction is sometimes referred to as to that between “matrimonial” and “non-matrimonial” property. A simple example of non-matrimonial property is something which one spouse owns before the marriage and retains on the breakdown of the married relationship.

The distinction between matrimonial and non-matrimonial property above is, however, subject to the principle of “mingling”. According to this principle, “the more and the longer that wealth has been enjoyed [by both parties to a marriage], the less fair it is that it should be ring-fenced and excluded from distribution…” (Robson v Robson [2010] EWCA Civ 1171). Thus, property which is initially non-matrimonial, but has become part of the economic life of the marriage and has been utilised and enjoyed during the marriage, may be deemed by the court to have effectively become matrimonial.

The result of this distinction is often that the court divides the parties’ property into two conceptual “pots”; a non-matrimonial pot and a matrimonial “pot”. The matrimonial pot is often shared equally, whereas the non-matrimonial pot is reserved for the party who brought the non-matrimonial pot into the marriage, unless the other party can demonstrate that “mingling” has occurred or that their need justifies them being allowed to “dip” into the non-matrimonial pot.

Principle of need

The principle of need requires consideration of the financial needs, obligations and responsibilities of the parties; of the standard of living enjoyed by the family before the breakdown of the marriage; of the age of each party; and of any physical or mental disability of either of them (Charman v Charman (No 4) [2007] EWCA Civ 503). The court’s first aim is usually to try, if possible, to achieve a satisfactory standard of housing and a regular income for both parties. However, parties’ needs must be assessed reasonably.

Principle of compensation

The purpose of compensation is to provide a party with redress for relationship-generated disadvantages. A payment to meet a party’s need might be said to be compensation for a relationship-generated disadvantage, however, a financial disadvantage generated by a relationship may extend much further than this, for example, where one party gives up a lucrative and successful career to, for example, raise the parties’ child.

How to do these principles come together?

The short answer is that it is an “art” and not a science. The Court has a broad discretion in how to apply the above principles.

How to “win”

As specialist family lawyers we are often asked how to win a financial settlement case. We believe that the key to success is threefold. First, there should be a clear strategy targeted towards the client’s desired financial outcome. Secondly, there should be a forensic approach to the facts that fall within the statutory criteria and legal principles set out above. Thirdly, cost-effectiveness should be borne in mind; technically, clients may want to pursue every possible issue and legal argument, however, that desire must be balanced against legal costs considerations – fewer legal arguments are sometimes better than many legal arguments.

About us

Demstone Chambers are family law barristers specialising in financial remedy cases. As family lawyers, we regularly help clients with such cases. We are based in Milton Keynes, but are able to help clients across England and Wales, including in the Birmingham and London areas.  


Demstone can help your case

Get in touch with us...