Ancillary relief is the term used for the financial orders that a court can make - often called the divorce settlement. These orders include regular maintenance payments, a lump sum, or even a transfer of property. Either party in the divorce proceedings may apply to the Court for ancillary relief.
Financial settlements in a divorce case can be agreed by partners with the help of a specialist divorce law solicitor and without the involvement of the courts. This can be done at any time during proceedings but certain orders such as those requiring husbands and wives to transfer property or pay lump sums to each other, can only be made after the decree nisi has been granted. certain agreements such as Pension Sharing can only be dealt with as court orders and which can only be made after Decree Nisi but only take effect after Decree Absolute.
To enable the Court to make a proper decision both parties are under a duty to give full and frank disclosure to the other about their income and assets. In effect, everything reasonably required for a settlement to be negotiated should be provided voluntarily. This non-exhaustive list includes the following:
- Last two years accounts
- Tax returns Latest
- P60 Last three wage slips
- Current loan/mortgage redemption statements
- Twelve months bank/building society account statements
- Details of any other assets held if the party has a beneficial interest within it
- Pension Sharing
Therefore, the fact money or assets may be held in the name of a third party is irrelevant to the requirement of it being properly disclosed.
If either (or both) parties fails to disclose any assets any negotiated divorce settlement may be put in jeopardy. Disclosure is the basis of any negotiated settlement or Court order so reliance on either is lost if a material non-disclosure is subsequently discovered.
The Law Society has set down a protocol for disclosure in order to try and address situations where non-co-operation has led to the necessity of applications to the Court.
The Court Process
This is private and in theory streamlined. Automatic orders follow an application setting a timetable for things to be done. The order confirms the date when a full pro forma financial statement is to be prepared by each party, lodged with the Court and served upon the other. The order will deal with when formal questions/requests for further documentation should follow. Finally, the order will confirm when the matter is listed before a District Judge for what is termed a First Directions Appointment (FDA).
At the FDA the District Judge will deal with the direction as to any necessary valuations of assets and approve/refuse disclosure requests. The idea is the District Judge limits disclosure to what is believed relevant in order to dispose of the case, managing the case so that the parties do not engage in war for war’s sake. At this point the District Judge will usually list the matter for a second appointment known as a Financial Dispute Resolution Appointment (FDR) prior to which a date will also be set by when the information and documentation requested and approved by the District Judge should be provided to the Court and the party making the request.
Financial Dispute Resolution
The purpose of the FDR is to try to reach settlement, if possible, with Judicial input to prevent parties from forming unrealistic expectations of their case. The FDR will (in theory) be before the same District Judge who dealt with the FDA to allow judicial continuity. The meeting is an "all cards on the table" hearing at which serious attempts are made to settle matters. The parties will be assisted by the District Judge. Prior to that appointment, there is an obligation on the parties to make offers through their solicitors to the other with a view to settlement.
If a divorce case is not settled then it will usually be listed for trial or, if appropriate, the FDR adjourned to continue at another time. The District Judge who conducted the FDR will take no further part in the proceedings.
Family Law Specialists
A specialist family lawyer familiar with the ancillary relief procedure should be instructed as soon as it becomes apparent a separation is likely to be permanent. Solicitors within the Clough & Willis Family Law Department specialise in this field and both partners are Resolution appointed Accredited Experts and subject to regular re-appraisal.
For more information concerning Resolution please follow the link - www.resolution.org.uk
Clough & Willis offer a free consultation service to provide a broad overview of what you could achieve and the likely cost. If you would like to arrange an appointment, or for more information, please call 0800 083 0815 between 9am and 5pm or contact
Lee Marston, lee.marston@clough-willis.co.uk or
Marie Whittaker, marie.whittaker@clough-willis.co.uk.
