Fact Sheets

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Ancillary Relief in Divorce

Once Divorce proceedings are issued, either party can apply for an Order from the other party to pay maintenance for themselves or possibly for a child, for a lump sum payment, or for property to be transferred or sold. When considering any such Application, the Court will take into account the following:

  1. Income, earning capacity, property and other financial resources which each of the parties of the marriage have or is likely to have in the foreseeable future, including in the case of earning capacity an increase in the capacity which it would in the opinion of the Court be reasonable to expect a party to the marriage to take steps to acquire. In addition, the Court is to have regard to any benefits under a Pension scheme which either party has or is likely to have in the future;
  2. the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
  3. the standard of living enjoyed by the family before the breakdown of the marriage.
  4. the age of each party to the marriage and the duration of the marriage;
  5. any physical or mental disabilities of the parties to the marriage;
  6. 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;
  7. 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;
  8. in the case of proceedings for Divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

The Court will need to have, in order to reach a decision, all information as to both parties' financial position. This will include details as to both parties' income, outgoings, assets, debts, liabilities and the transfer value of each Parties' Pensions.

If proceedings have to be issued, either because one party will not reveal their true financial position, or because negotiations break down, then an application is made to the Court on Form A to pursue a financial claim and the Court will fix a First Appointment 12-16 weeks ahead. Once that appointment is set both parties must attend the Court and the Court will only excuse attendance in exceptional circumstances. Both parties must then complete a Form E, which is a document which must contain full details of each party's financial position, signed and sworn by each party. In addition to completing Form E, the following documents will need to be provided:

  1. A copy of any valuation of a property which has been obtained within the last 6 months and the most recent mortgage statement;
  2. copy bank statements covering the previous 12 months in respect of every bank, building society or national savings account held;
  3. surrender value quotations for insurance policies;
  4. copy of the last 2 years' accounts of any business interest and any other document or valuation of your interest in business;
  5. pension valuations, or if not available in time a copy of a letter to the trustees or managers of the pension scheme requesting information;
  6. your last 3 payslips and P60 for the last completed financial year;
  7. a copy of accounts for the last 2 completed accounting years if you are in partnership or self-employed.

The Court will set a date when Forms E must be exchanged simultaneously. The Court will also set a date whereby a concise Statement of Issues and a Questionnaire is to be sent to the Court and served on the other party. The Statement of Issue, as its name suggests, will set out the issues in dispute between the parties. The Questionnaire can ask further information missing from the Form E or if clarification of information contained within the Form E is needed. No further documents can be requested prior to the First Appointment. A Chronology will also be prepared, setting out a brief history of the relationship.

At the First Appointment the Judge will consider the issues in dispute and decide how to progress the claim. The Judge will take this opportunity to decide whether further documents are needed and whether assets need to be valued. The Judge may also make Directions regarding the valuation of assets etc.

It is also likely that the Judge will direct that the case be referred to a Financial Dispute Resolution Appointment (see later). The Judge may make a temporary Order if an application has been made and it is appropriate to do so. After the first Appointment it is not normally possible to ask for further documents to be produced, unless a Judge has allowed this at the First Appointment.

The Financial Dispute Resolution Appointment is an opportunity to discuss and negotiate with a view to coming to a settlement. The meeting will be conducted by a Judge, who will make any Orders that are agreed or make further Directions, for example setting the case down for a Trial if a settlement has not been reached. The Judge may at this stage give an indication as to the sort of Order that he or she would make in the case.

If no settlement is reached then a Final Hearing will take place. Both parties will need to give evidence and the Judge will then decide on the final Order.

It is usual in these proceedings for no Order to be made that another party bears your costs unless the other party has deliberately and unreasonably incurred costs through their conduct in the proceedings.

Pension sharing came into force on 1st December 2000. This means that the Courts will have more power to order the splitting of a pension scheme and for that share to be transferred to the other spouse's own scheme. The pension scheme would be split at the time of the Order. Some schemes are not capable of being split. Since 1st July 1996 the Courts have been able to make earmarking Orders against pensions.

Essentially this means that a Court can now order the managers or trustees of a pension scheme to pay out benefits to an ex-spouse on retirement. This could include an Order for a lump sum or maintenance or for an Order that any death in service benefits under a pension scheme are payable to an ex-spouse (useful in terms of protecting maintenance in the event of the pension scheme member's death). Alternatively it has always been possible to set off the value of a pension scheme against other assets so that, for example, the pension scheme is taken into account by awarding the other spouse a greater percentage of the assets available.

Colemans Solicitors LLP August 2007