All the circumstances of the case – Section 25 Factors (Blog 2 of 4)

When a Court considers how to exercise its powers in a financial case on divorce, it is the duty of the Court to “have regard to all the circumstances of the case”.

It  is those particular factors which I have listed in my first blog on this topic and I will deal with each in turn shortly.

The factors are set out in wide terms and it has been held that the Court must not confine itself to these specified factors.  It is necessary to consider all other circumstances, whether past, present or future.

A circumstance which is not specifically set out in Section 25 but which is nevertheless important is the existence of an agreement between the parties and I will consider that in a further blog.

As we know, the Court is directed t have regard to all matters and there is nothing in Section 25 to indicate that any one factor shall be any more important than any other.  Quite clearly, however, in some cases, consideration of one factor, for example, age, the length of the marriage etc., will occupy more time than the others and it may well be the case that one factor will prove to be more important than the others.

First consideration – the welfare of the children – Section 25

The “first consideration” of the Court must be given to:

“…the welfare of a minor or any child of the family who has not attained the age of eighteen”.

The child must be under eighteen years of age and the scope of the Court’s duty is limited to period ending with the child’s eighteenth birthday.  This is not to say that the Court may or should not have regard to dependent children who are over eighteen but such consideration would arise from one of the other factors such as the financial obligations or responsibilities of the parties for example.

Although, in accordance with Section 25, this is “the first consideration” it has been held that this is not the same as the “paramount consideration” compared to residence or contact matters.  The welfare of a child is therefore not to be regarded as taking precedence over all other matters.