A Guide to Ancillary Relief Proceedings

'Ancillary relief' is the expression used by the Matrimonial Causes Act 1973 to describe the orders a court can make to resolve financial issues between parties to divorce or judicial separation proceedings.

Orders a court can make

These orders include:

• Property transfer orders, i.e. transferring title to property to one or other of the other or the parties;
• Lump sum orders, i.e. requiring one party to pay the other a capital sum;
• Periodical payments, i.e. maintenance. Usually this will be from spouse to the other. The courts have only very limited jurisdiction to order payment of maintenance in respect of a child as being principally the function of the Child Support Agency;
• Pension transfer orders, i.e. splitting the sum of the pension fund to one party and putting it into a pension fund for the other; and

• Considerations which will affect the court's judgement.

Section 25 of the matrimonial causes act 1973 requires the court to have regard to the following factors when deciding whether to make orders of this sort and, if so, how that power should be exercised:

• The welfare of any child of the family (this is described as the first consideration);
• The income, earning capacity, property and other financial resources which each party has or is likely to have in the foreseeable future;
• The financial needs, obligations and responsibilities of each of the parties;
• 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 party to the marriage;
• The contributions that each party has made or is likely in the foreseeable future to make to the welfare of the family including 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; and

• The value of any benefit one party might have had by reason of being married which they will then lose (this usually means pension or life insurance benefits).

What is certain is that following the divorce both parties will be less well off than they had been previously. The combined means of the couple concerned previously provided for one home but must now provided for two. The court has to try to balance the claims of both parties and will specifically examine the needs and means of them both.

Procedure

1. Proceedings whereby a party seeks an ancillary relief order are commenced by filing an application form A. The court fee is £210.

2. On receipt of an application the court will set a date for the first court hearing (the First Appointment) and require both parties to file statements as to their means (in Form E) no later than 35 days before the First Appointment.
   
   
3. Immediately prior to the First Appointment the solicitors on each side will exchange the following documents:
   • A chronology;
   • A questionnaire setting out the further details and documents they believe the other should/will provide;
   • A statement of the issues that arise, whether they be factual disputes or arguments as to the significance of agreed facts;
   • A form G, which states whether or not the parties can in fact treat the First Appointment as the second stage of the proceedings, the FDR (see below).
     
     
4. At the First Appointment the judge will review the questionnaires and discuss with each side whether in fact any further details or documents are required and, if so, what. If the parties have agreed (in the Form G) that this appointment can go further the judge will also discuss the settlement issues.
   
   
5. After the First Appointment both parties will deal with any order made by the judge as to provision for further details and documents.
   
   
6. There will then be a second hearing, known as the Financial Dispute Resolution appointment or 'FDR'. At this appointment the judge will require both parties to tell him what proposals have been made hitherto, including without prejudice proposals and requiring each side to state exactly what order is sought. The judge will examine the merits to those proposals with both sides and seek to identify any strong points or any weak points with a view to facilitating a settlement.
   
   
7. Final hearing. If neither the First Appointment or the FDR produce a settlement the court will allocate court time for the final hearing. At this hearing both parties will have the opportunity to make their case both by evidence and argument and at the conclusion the judge will make his decision.

Consent Orders

It is by no means inevitable that ancillary relief proceedings will go all the way to a final hearing. Indeed, most cases will eventually result in a negotiated settlement, the terms of which are recorded in a consent order.

Also, where the parties are able to reach an agreement as to financial issues without even the need to commence ancillary relief proceedings they will be advised to record the terms agreed in a consent order so that there is no uncertainty as to what has been agreed and to achieve finality. The court fee for filing a consent order is £30.

Costs

Costs are a very important part of ancillary relief proceedings. Costs on both sides will be thousands of pounds and will therefore further reduce what assets either party may have after the financial division. Consequently, courts will make costs orders requiring one party to pay the costs of the other in appropriate cases. The courts will look at the reasonableness of the approach taken by each party and in particular what pre-trial offers were made and how they compare with the final outcome. Thus, both sides have an interest in making realistic proposals. To fail to do so is to invite the possibility of a costs order being made.

Cases that are settled by negotiation will usually be on the basis that each party pays their own costs. This is not an absolute, but it is usually sensible to approach the case on that basis.

You may be able to obtain 'public funding' (formerly known as legal aid) in respect of your costs of the proceedings. This does not enable a party to avoid paying costs at all as the Legal Services Commission (who administer the public funding scheme) are entitled to recover the costs incurred on behalf of a party with the benefit of public funding from any money or property exceeding £3000 preserved or recovered by that party, which his the case in most ancillary relief cases. Your solicitor will discuss with you whether or not you are likely to be eligible for public funding and explain the process in more detail.

Alternative Dispute Resolution

Court proceedings are not the only means of resolving disputes of this sort.

Alternative means of resolving disputes do exist, particularly mediation.

The mediation process involves a trained mediator sitting down with both parties and trying to facilitate a settlement through discussion.

Mediation often operates alongside the court process so that parties can continue to try to resolve disputes through mediation even while the court proceedings are going forward.

This note is intended as a general guide to the issues and terminology involved in ancillary relief proceedings. It is necessarily not a comprehensive exposition. The application of these notes will vary according to the facts of individual cases.

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