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(c) the standard of living enjoyed by the family before the breakdown of the marriage;

In an ancillary relief application this sub-section is something of a hang-over from the pre-1973 law.The law as it stood at that time allowed the parties to be "compensated" for the standard of living which was lost as a result of the marriage breaking down. This might have made sense, for instance, where a wife had given up her employment to marry a very wealthy man and then the marriage broke down. Such a wife might feel that she ought to be compensated for what she had lost.

It has to be said that this approach is now something of an anachronism and it is not readily taken into account by the courts although reference to the former standard of living often features on a Form E. There is a strong public feeling that divorce should not represent a "meal ticket for life" (which is reflected in the statutory provisions that the courts should always consider the appropriateness of a "clean break" settlement and/or limiting spousal maintenance in terms of time) and the attitude of the courts to some extent mirrors this.

The truth of the matter is that in the overwhelming majority of cases of marriage breakdown it is simply not practical to put this consideration into practice. Say, for instance, the only significant matrimonial asset is the former matrimonial home and that both husband and wife have a need for alternative accommodation (as is very often the case). If the matrimonial home is sold and the proceeds divided between husband and wife the likely outcome is that each will have to live in a more modest home. The additional expenses of maintaining two homes where only one was maintained before from the same joint income will mean that the standard of living of both spouses will fall. This is inevitable and there is not a great deal that can be done about it.

For the above reason this sub-section is only rarely applicable in ancillary relief proceedings. In most cases it is simply a counsel of perfection and the available assets do not make it viable to consider doing this. Nevertheless, if the assets available for division are substantial this sub-section may become still become relevant in some cases.



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