First consideration to children's welfare - MCA 1973 s. 25
MCA 1973 s. 25: child's welfare first, then eight factors - resources, needs, standard of living, age, disability, contributions, conduct, lost benefits.
Official text
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MCA 1973 s. 25 — United Kingdom
It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24 , 24A , 24B or 24E above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen. As regards the exercise of the powers of the court under section 23(1)(a), (b) or (c), 24 , 24A , 24B or 24E above in relation to a party to the marriage, the court shall in particular have regard to the following matters— 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, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire; 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; in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit ... which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring. As regards the exercise of the powers of the court under section 23(1)(d), (e) or (f), (2) or (4), 24 or 24A above in relation to a child of the family, the court shall in particular have regard to the following matters— the financial needs of the child; the income, earning capacity (if any), property and other financial resources of the child; any physical or mental disability of the child; the manner in which he was being and in which the parties to the marriage expected him to be educated or trained; the considerations mentioned in relation to the parties to the marriage in paragraphs (a), (b), (c) and (e) of subsection (2) above. As regards the exercise of the powers of the court under section 23(1)(d), (e) or (f), (2) or (4), 24 or 24A above against a party to a marriage in favour of a child of the family who is not the child of that party, the court shall also have regard— to whether that party assumed any responsibility for the child’s maintenance, and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility; to whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own; to the liability of any other person to maintain the child.
Section 25 is the section every financial remedy judgment is built on. It imposes a duty to have regard to all the circumstances of the case, with "first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen". First consideration is a deliberately chosen phrase: it ranks the children's welfare above the other factors without making it paramount, which is the standard the Children Act 1989 uses for decisions about upbringing.
Subsection (2) then lists the eight matters to have particular regard to as between the spouses: the income, earning capacity, property and other financial resources each has or is likely to have - including any increase in earning capacity it would be reasonable to expect them to acquire; the financial needs, obligations and responsibilities of each; the standard of living enjoyed before the breakdown; the age of each party and the duration of the marriage; any physical or mental disability; the contributions each has made or is likely to make to the welfare of the family, expressly "including any contribution by looking after the home or caring for the family"; the conduct of each party, but only "if that conduct is such that it would in the opinion of the court be inequitable to disregard it"; and the value of any benefit a party will lose the chance of acquiring because of the divorce.
Two of those repay attention. Paragraph (f) puts unpaid domestic contribution on the same footing as earning, which is why a long marriage with one earner and one carer is not approached as a claim by one on the other's money. Paragraph (g) sets a high bar for conduct: ordinary marital misconduct is not weighed, and the question is whether it would be inequitable to disregard it. Subsections (3) and (4) give the parallel lists for orders in favour of a child, including the position where the child is not the paying party's own.
When it applies
A long marriage where one spouse earned and the other raised the children.
A short marriage where each party came in with their own assets.
One spouse arguing the other's behaviour should reduce their share.
A spouse in their fifties whose earning capacity is limited by years out of work.
Working out how much weight the standard of living during the marriage carries.
Provision for a stepchild treated as a child of the family.
What this section does not say
×It does not say assets are split fifty-fifty. There is no percentage in the section; equal sharing is a principle developed by the courts in applying it, not a statutory rule.
×It does not make the children's welfare paramount. First consideration is a lower standard than the paramountcy principle in section 1 of the Children Act 1989.
×It does not weigh ordinary marital misconduct. Conduct counts only where it would be inequitable to disregard it.
×It is not a formula and it does not produce a figure. The factors are weighed, not scored, and outcomes on similar facts can differ.
×It does not apply to unmarried couples, however long they lived together.
×It does not exhaust the inquiry. The duty is to have regard to all the circumstances; the eight matters are those to have particular regard to.
Worked examples
Invented situations, written to show how the wording bites. They are not real cases, not judgments and not precedent, and nothing here predicts what would happen in yours.
Illustrative example
A marriage of nineteen years ends. One spouse worked throughout and built up a pension and savings; the other worked part time around the children. The earner says the savings and pension are theirs because they earned them.
How the wording applies
Subsection (2)(f) requires regard to the contributions each has made to the welfare of the family, 'including any contribution by looking after the home or caring for the family', which puts unpaid domestic contribution on the same footing as earnings. The fact that then does the heavy lifting is the combination of the length of the marriage and each party's future earning capacity, since years out of the workforce show up as a resource question rather than a moral one. There is no percentage anywhere in the section.
How the parties settled it
They agree a division that gives the parent with the lower earning capacity the larger share of the housing equity and a pension sharing order bringing the two pension provisions closer together.
Illustrative example
One spouse wants the settlement adjusted because of the other's behaviour during the marriage - an affair, and a period of heavy spending.
How the wording applies
Conduct is in the list at subsection (2)(g), but only conduct that it would be inequitable to disregard, which is a deliberately high bar and is not met by ordinary marital misconduct. The fact that separates the two examples is their financial character: an affair is generally not weighed, whereas dissipation of assets can be, because it changes what is left to divide rather than expressing a view about the marriage.
How the parties settled it
They agree to leave the affair out of the discussion entirely and to add back an agreed figure for the documented unusual spending before dividing the remaining assets.
Illustrative example
A couple in their fifties separate after a marriage in which one gave up a career and now cannot realistically return to the same level of income.
How the wording applies
Subsection (2)(a) covers not only present resources but earning capacity, including any increase it would be reasonable to expect a party to acquire, and subsection (2)(d) brings in the age of each party and the duration of the marriage. The fact that decides how those interact is what retraining or re-entry is realistically open at this age - the section asks what it would be reasonable to expect, not what would be theoretically possible. The children's welfare takes first consideration but not paramountcy.
How the parties settled it
They agree a larger capital share plus maintenance for a fixed term while a retraining course is completed, with the term extendable only if the course is not finished for health reasons.
The same problem elsewhere
The other legal systems in this collection answer the same everyday problem with their own provisions.
The comparison and these one-line summaries are in English.
Who stays in the family home: separation and the house in six legal systems
Say what is happening. A neutral mediator hears your side and the other party's, and walks you both to a written agreement. In the advanced settings you can ask for the decision to be reasoned on the Acts of Parliament that apply in England and Wales.
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This page reproduces the text of MCA 1973 s. 25 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.