judge or solicitor ?

could someone please tell me ,is it the judge or the solicitor who decides if S.M. is payable?can the solicitors sort it out between them, or do you have to go to court?thanks

The judge doesnt make a firm and binding ruling on the Ancillary relief application (inlcuding any provision for SM) parties unless and until you get to a final hearing.

90% of cases settle before that stage through negotiation between the two parties, each advised by their solicitors.

Based on the facts of the case, and the law, the solicitors involved advise their clients whether they feel SM is appropriate (and likely to be ordered by a judge at the final hearing if all negotiation fails).

If both sets of sols give similar advice to their clients things generally work more smoothly. If the solicitors are miles apart in their views then it is hard to bridge the gap through negotiation.

thankyou d.b.n.o. but can you pls tell me how they would work the S.M. out,i have read so many different views on this,i really dont understand it! why cant it be black and white? life (and divorce) would be so much easier!.......why would the solicitors not agree if there is a law on this?

In England & Wales there is a flexible framework set out in legislation which means there is considerable room for interpretation and the relevance of evidence. A solicitor's opinion will be based on the best outcome they could expect for their client and it is a question then of negotiation between the two positions. At the end of the day the only opinion that is binding is the judge's, so if agreement can't be reached during ancillary relief proceedings a decision is imposed.

Courts are directed to regard all the s25 MCA 1973 matters, in particular establishing an amount that allows the applicant to live at an appropriate standard in light of the other s25 factors. From that figure the income of the applicant can be deducted to produce their income needs. Then it's a question of calculating the ability of the other party to meet those needs and considering proportionality so there is balance. Therefore the more the capital settlement is in favour of one party the less claim there is to SM.

thankyou fiona for your fast and helpful reply.....smoker

if anyone elce has any more info on how to work out S.M. ,it would be very helpful.thanks

Smoker
having just had fh where issue of sm was addressed......
My x2b put certain conditions on me for the sm (30%) this was between counsel and not inc judge, I haoever refused to be told by him that I basically had to stay single for 5 years (though I will be!!) I bargained better pension share and more capital instead depends on your own circumstances and if you can bargain with him.... it is bascally negotiated out of judges chambers as rule of thumb
hope this helps
looby