The murky world of s25

H doesn't have disabilities that prevent him working and will have worked before on £70k with at least some of those conditions. W's position that H could earn £70k maybe unreasonable but expectation will be that he seeks treatment and does something. H hasn't worked because he hasn't had to because of W's income but that will change because of divorce. If not, will be expected to live on benefits; W very unlikely to be expected to subsidise H income if only earning £49k herself.

Child needs will be dependent on who parent with care is. If 50/50, no CMS. Court could order maintenance for child but can be overturned after a year. This is not an SM case, W doesn't earn enough and H could earn and is choosing not to (there is no way a court will accept work is impossible with the conditions listed). Also, anything W could afford to pay would simply erode H's benefits. H would almost certainly be allowed to claim the child benefit and child related universal credit however, provided it is shared care.

Housing needs are a 2 bed flat each. If there is sufficient equity sale and split will be outcome, maybe slightly in favour of H (with asset split overall 50/50 using other assets). If not sufficient equity, still most likely outcome is sell and split. H has no realistic prospect of paying a mortgage or maintaining a house on their income, W doesn't earn enough to pay SM and H would therefore be better off claiming housing benefits and renting.

Outcome is equitable because neither party earns a lot and will get a fair share of marital pot. Holding W to a Mesher Order or forcing her to pay SM that wipes out H's benefit claims would result in much more inequitable outcome. Plus H can manage their conditions and work and is choosing not to. Outcome would be exactly the same if W was the one choosing not to work.

Guidance on Needs definitely doesn't support maintaining lifestyle. Care needs to be taken when reading to absorb the whole document and not to cherry pick. Lifestyle is normally impossible to maintain after divorce and standard of living during marriage is "not the lodestar." Weaker financial party normally expected to adjust to a lower standard or living over time to achieve desired independence.

H has no chance to recover because they won't work. It would be unreasonable to hold W back forever because of that and court will seek a Clean Break as soon as possible.

Most likely outcome is H will be given larger share of FMH (perhaps 60-70%), other assets used to return split to around 50/50 and clean break ordered.

Thankyou, I'm learning alot to help sort this.

I do remain confused as the judiciary guidance is very much that mortgage cap is a resource and should be treated as such ergo if a party has a large cap and other does not that is valid.

Second the assumption is H choses not to work however is assessed due to health as not being able.

Really struggle with the position that a party can just take half but then walk away laughing retaining good salary and pension etc. get a cheap small mortgage and buy large house leaving other with disability on benefits and minimal housing caring for disabled child? That goes against other legal points of view?

EG
Equity plus mort capacity to fund equal housing for both.
Incomes then balanced with SM
Pensions similar
SM future provision to chance should magic recover happen

Mortgage capacity is a resource but courts still have to be fair. Unless one party is a high earner AND not the primary resident parent then the court is not going to give the lion's share of equity to the other party. The guidance is quite clear that outcomes have to be fair to both parties and one having to pay a mortgage into their retirement whilst the other lives mortgage free without having to maximise their earning capacity will not be considered a fair outcome. Potentially H could "borrow" some of W's equity as a chargeback until child is 18 but that is only likely to happen if H is able to release W from joint mortgage. Their refusal to work makes that unlikely.

The courts also have to prioritise the children. When faced with two parents neither of whom earn a lot, it's not going to be in the child's interests to make W a lot poorer so that H can live off maintenance instead of benefits. That's just taking the modest resources of the family and making them even more modest which will be a bad outcome for the child.

The reason I think you are struggling with the likely outcome is because you are:

1) Exaggerating the sympathy H will get from a court in relation to their inability to work (medicate and get on with it like other people with ADHD and depression who work do is likely to be the courts opinion;

2) Overestimating W's ability to maintain a second household on a modest salary. H might have needs but W doesn't have capacity to support those needs.

3) Underestimating how strong the reasons for a departure from equality in terms of asset splits need to be.

4) Equality of housing will be based on earning capacity. I would expect as H has earned £70k in the past and has the sort of conditions that can be successfully treated that they will be assumed to have an earning capacity of at least minimum wage if not higher.

5) Seriously underestimating how rare SM is. There is almost no way a court would order someone on only £49k with a child to provide for to pay SM to someone who is on benefits. The most likely outcome is the court will tell H to seek treatment and get a job.

These responses highlight core issues - s25 factors exist but are effectively ignored as poorly accounted for or understood by some, it is all down to the lottery of random on the day and the process is data sharing which is a poor tool to communicate s25 issues.

Luckily not all agree the realistic solution to everything is get treated get on with it. If that's the case maybe divorce will improve in 150years when it catches up with society (this is an issue that is being reviewed currently as so poor)

So in effect H works self into ground health deteriorated over years, treated etc but no improement, cannot continue W cant be bothered ensures lots of equity built up and system bias then goes off with next victim and takes the proceeds.

Any counter views as EMC has done some heavy lifting that always just ends up as same? And what could shift the courts views?

s25 factors are being followed, you're just not interpreting them correctly in accordance with the case law. You keep making the mistake of prioritising the needs of one party over the others too.

There's a practical problem you are missing too. H will lose benefits £ for £ if they receive spousal maintenance. As they get £10k in benefits, W would need to pay £10,001 in SM before H was £1 better off.

W earns only £49k, which is what, about £38k net? So if they pay £10k SM they're down to £28k but they will have to pay substantively more than that or SM would be pointless. So they pay another, what, £9k so the parties are equal? So now W is barely taking home more than minimum wage but having to do a more stressful job.

H obviously decided he couldn't be arsed to "work himself into the ground" for the family some time ago. How long do you think W would take to do the same if ordered to pay substantive SM? Especially considering W has a new partner to depend on?

The court is going to want a clean break from this case. They may award H more equity and W more of the pensions to even things out but Mesher Orders and SM in such a modest case isn't going to happen.