Getting a divorce or dissolving a civil partnership can be an extremely difficult time for all parties involved, not least sorting out the financial aspects of your separation. Any financial arrangements will need to be approved, if not resolved, by the courts though the process of ‘ancillary relief’. This basic guide to ancillary relief provides an overview of what it means and how it all works.
What is the meaning of ‘ancillary relief’?
Ancillary relief is the application to the courts to settle all financial aspects of your relationship following the presentation of a petition for divorce or dissolution of a civil partnership. The term derives from the fact that the financial application is ‘ancillary’ and entirely separate to the divorce or dissolution proceedings.
An order for ancillary relief is now more commonly known as a ‘financial order’.
Who is eligible to apply for ancillary relief?
Either party to a divorce or dissolution of a civil partnership is eligible to apply for ancillary relief. It may be that you are seeking financial provision from your ex by way of spousal maintenance. Alternatively, you may be looking to cut all financial ties and achieve a clean break.
Whether you are seeking financial provision or financial division, you can ask the court to make an order for ancillary relief following presentation of the petition for divorce or dissolution of a civil partnership – irrespective of who filed the petition.
Financial protection from any future claims
Even if there were no assets or wealth to speak of during the course of the marriage or civil partnership, having a court order in place is essential to dismiss any future financial claims between you. A clean break order will protect any wealth that you may acquire at a later date, for example, any inheritance or a lottery win.
In the absence of a financial order, it remains open to either party to bring a claim for ancillary relief at any point in the future.
What financial orders can a court make on an application for ancillary relief?
Where you and your ex are able to agree on how to divide what you own, you can ask the court to approve that agreement by way of a consent order. This will make the agreement legally binding in the event that there is any subsequent failure to comply.
If you are unable to agree, the court can make various financial decisions for you, including whether one of you should pay maintenance to the other. There are various different types of financial order available to the court, including but not limited to:
- an order for maintenance pending suit, ie; in the short term
- a periodical payments order, ie; an ongoing order for maintenance, sometimes for a specified term
- a nominal order, ie; an order for a minimal amount of maintenance to keep open the possibility of asking for more in the future if your or your ex’s circumstances change
- a lump sum order, ie; for a fixed sum of money in one payment or instalments
- a property adjustment order, ie; to set out what happens to any property owned jointly or separately
- a pension sharing order, ie; to set out what percentage, if any, of a pension belonging to you or your ex must be transferred to the other
- a pension attachment order, ie; to set out what proportion of any pension income or lump sum belonging to you or your ex must be paid to the other
- a clean break order, ie; where all financial ties to each other are cut.
When can a court make an order for ancillary relief?
The court can make both interim and final financial orders. An interim order is an order to provide financial support during the course of the ancillary relief proceedings.
A court cannot make a final order until you or your ex have been granted a decree nisi or conditional order confirming that you are entitled to a divorce or to end your civil partnership. Further, a final order cannot come into effect until the decree nisi has been made absolute or the conditional order final, ie; when your marriage or civil partnership is officially at an end.
Will I be required to attend mediation before applying for ancillary relief?
Before you apply for a financial order, generally speaking, you will be required to attend what’s known as a “Mediation Information and Assessment Meeting”. This meeting is designed to give you information about how you might be able to sort out your finances without going to court and whether mediation is a suitable way of achieving this.
Having attended the meeting you are under no obligation to use mediation thereafter. There are also a number of circumstances in which you may be exempt from attending at all, for example, if there is a history of domestic violence, there are child protection concerns or a legitimate need for urgency.
The procedure for applying for ancillary relief
The procedure for applying for a financial order involves a series of compulsory steps, including the preliminary step of meeting with a family mediator. Thereafter, there are usually three stages in an application for a financial order: the first appointment, the financial dispute resolution appointment and the final hearing.
You and your ex will be required to provide full and frank disclosure about your finances, including your income, outgoings, assets and debts.
You will also be encouraged to make proposals and consider offers of settlement with a view to avoiding the need for a final hearing. It is possible for the parties to reach an agreement at any stage prior to the making of a final order.
What does the court take into account when it makes a decision?
When a court decides how to divide up what you own, it will take certain factors into account. This includes:
- the welfare of any child of the family under 18 years old
- the income, earning capacity, property and other financial resources which each of you
- has or is likely to have in the foreseeable future
- the financial needs, obligations and responsibilities which each of you has or is likely to have in the foreseeable future
- the standard of living enjoyed by the family before the breakdown of the marriage or civil partnership
- the age and the length of your marriage or civil partnership
- any physical or mental disability suffered by you or your ex
- any contribution made to the welfare of the family, including by looking after the home or caring for the family
- the value of any benefit which either of you will lose the chance of acquiring
- whether it is fair and reasonable to order a clean break.
How the court applies these principles will depend on your individual circumstances. Save except in extreme circumstances, the court will not take into account who is responsible for the breakdown of the relationship. The conduct of the parties will only be considered if it was so extreme that it would be unfair not to, for example, where domestic violence has resulted in injuries leaving you incapable of work.
Should I seek legal advice if I am seeking ancillary relief?
The legal, financial and procedural aspects of ancillary relief can be highly complex, so seeking expert legal advice and representation is often in the best interests of all parties involved.
With the help of your legal adviser you may be able to negotiate an agreement and incorporate acceptable terms into a consent order, thus avoiding the need for protracted and costly ancillary relief proceedings.
If agreement can be reached, your legal adviser can ensure that the terms of the order achieve the desired outcome and that you fully understand the implications of what you are agreeing to. If agreement cannot be reached, your legal adviser will be able to guide you through the process of applying for ancillary relief and provide representation in the event that a final hearing proves necessary.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
