How the Court approach ancillary relief claims
If a couple are unable to reach a financial settlement it is necessary to ask the Court to sort out the arrangement they think is best. This is known as an ancillary relief case.
Such a case is normally bought for one of these 3 main reasons, the first being quite common:
1. To persuade the other spouse to face up to the need for an agreement
2. Because you simply cannot agree what a settlement should be
3. Because you cannot make much of a start on 1 or 2 as nothing much is known about the finances of the other spouse.
Here is an outline of how the Courts approach an ancillary relief application:
The court takes various matters into account when considering what order should be made. The court considers all the circumstances of the case, gives first consideration to the welfare of any children of the family under the age of 18 and, in particular, the court has regard to the following matters:
(a) The income, earning capacity, property and other financial resources which each spouse 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 be, in the opinion of the court, reasonable to expect a person to take steps to acquire.
(b) The financial needs, obligations and responsibilities which each spouse 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 ages of each spouse and the duration of the marriage.
(e) Any physical or mental disability of each spouse.
(f) The contributions which each spouse has made or is likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family.
(g) The conduct of each spouse, if that conduct is such that it would in the opinion of the Court be inequitable to disregard.
(h) The value to each spouse of any benefit which one spouse because of the divorce will lose the chance of acquiring (most usually pension provision).
The aim of the court is to achieve fairness. Following a landmark decision called White v White in 2000, the court has to consider an equal division of assets built up during the marriage, unless the marriage was of short duration, or the assets are insufficient to satisfy capital needs in particular re-housing.
However, often a key and decisive factor is the reasonable needs (especially housing needs) of yourself and your spouse, which often overrides any possibility of an equal division of assets.
In most cases, the courts no longer have power to make orders for child maintenance except by agreement; an application to the CSA (now called CMEC) has to be made for child maintenance to be assessed.
In each case, the individual facts of the case show up that certain of the above factors will be particularly relevant.
Both you and your spouse have an absolute duty to each other and to the court to disclose fully your financial position (and any significant changes during the case) so that a proper financial arrangement can be made. That is an ongoing duty which continues until an order is approved or made by the court.
For details of how an ancillary relief case might proceed read the Financial Settlements page.
Need further advice?
Call Woolley & Co on 0800 3213832 or book a free initial telephone appointment with one of our lawyers.
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