| |
| |
| Information
sheets |
| ANCILLARY
RELIEF (FINANCE/PROPERTY) INFORMATION SHEET |
Meaning
Ancillary Relief refers to the resolution of the
financial aspects of the marriage breakdown. The
various Orders which can be made by a divorce County
Court are as follows:-
1)
Maintenance for one of the parties.
2) Maintenance for a child of the family who is
not a qualifying child for the purposes of the Child
Support Agency or if Child Support is agreed.
3) Lump sum provision i.e. payment of a specified
sum of money by one party to the other to resolve
division of the matrimonial home or other capital
assets such as savings.
4) Property adjustment e.g. outright transfer of
the matrimonial home to one party. In many cases,
none or only some of the various forms of ancillary
relief will apply.
5) Pension. The court may earmark part of the pension
fund to be paid to the other party or set off the
value against the capital provision. On all divorce
petitions issued after 1 December 2000 the court
will also have the power to order a Sharing Order.
This is a complex area and specific advice needs
to be sought.
The Court Order may be made by agreement or following
dispute between the parties. No Lump Sum or Property
Adjustment Order can take effect until after the
decree absolute.
Agreed Settlement
Where terms can be agreed between the parties, then
these will be incorporated into a draft Consent
Order prepared by the parties solicitors and presented
to the court, together with the additional information
required by the court. The draft Order will then
be checked by the District Judge and, if satisfactory
from the court's point of view, made into a court
Order. It is certainly simpler, quicker and very
much cheaper to deal with ancillary relief by agreement.
Reasonable compromise is therefore advisable if
it will achieve this result.
Dispute - Procedure
For various reasons, it may not be possible to reach
agreement. Ancillary relief will then have to be
resolved on a dispute basis.
The basic procedural steps in disputed proceedings
are as follows:-
1) One party makes an application for ancillary
relief.
2) Both parties file sworn statements documenting
as fully as possibly their income and expenditure
and their capital resources.
3) Any property involved is valued.
4) There is a hearing before the District Judge
when each party is able to put forward his or her
case. The District Judge then decides what Order
should be made.
The procedure may, of course, vary from the above
in individual cases depending upon the matters arising.
The proceedings from start to finish can take several
months.
It is quite possible and permissible to reach an
agreement at any stage of the proceedings. The resulting
order will then be by consent.
In making his decision, the District Judge has to
have regard to various factors set out in the relevant
Act of Parliament (Matrimonial Causes Act 1973).
Subject to this, he has a very wide discretion as
to the Order which he can make. This wide discretion
makes it difficult to predict beforehand the precise
outcome. In other words, there is always a risk
in ancillary relief proceedings that the decision
may not turn out as desired.
The court must have regard to all of the circumstances
of the case, first consideration being given to
the welfare of any child who has not attained the
age of 18 years or completed full-time education.
When considering children's needs, they must look
at the child's financial needs, the income earning
capacity (if any); property and other financial
resources for the children; physical and mental
disabilities; the method in which the children were
being and in which the parties expected the children
to be educated/trained. The court must also consider
whether a clean break can be achieved between the
parties.
The court should also have regard to the following
matters:-
a) 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;
b) the financial needs, obligation and responsibilities
which each of the parties to the marriage has or
is likely to have in the foreseeable future;
c) The standard of living enjoyed by the family
before the breakdown of the marriage;
d) The age of each party to the marriage and the
duration of the marriage;
e) Any physical or mental disability of either of
the parties to the marriage;
f) 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;
g) The conduct of each of the parties, if that conduct
is such that it would be in the opinion of the court
inequitable to disregard it;
h) The value to each of the parties to the marriage
of any benefit which, by reason of the dissolution
of the marriage, that party will lose the chance
of acquiring, i.e. pension.
It is not possible in this sheet to set out all
the pros and cons involved in disputed ancillary
relief proceedings. All will depend on the individual
case and its facts. Specific advice should be sought.
Dismissal
The court can make an Order dismissing some or all
of the ancillary relief claims. For example, a spouse's
rights to maintenance can be dismissed or further
capital claims between the parties can be dismissed.
The effect of a Dismissal Order is to terminate
once and for all the right to the particular ancillary
relief. In the first example above, the spouse would
not at any time in the future be able to make a
maintenance claim.
It is not possible to set out in this sheet the
circumstances in which Dismissal Orders can and
cannot be made. Again, specific advice should be
sought. |
| back
to fact sheet menu |
|
|
| |
|
|
|
