Divorce, ancillary relief and marriage settlements
Introduction
Divorce
The financial arrangements as they will be after the divorce (ancillary relief)
- orders which a court can make
- What the Court takes into account in deciding what order to make
- How does the law apply to your case?
- What is a clean break?
- Can I negotiate a settlement directly with my spouse or civil partner?
- How will the arrangements for the children affect ancillary relief
- What is the relevance of legal costs in deciding who gets what?
- How can costs be minimized?
- What is the effect of legal aid?
The arrangements for any children of the marriage or civil partnership
Non-Molestation Injunctions and Occupation Orders
Introduction
Whether you are in a marriage or civil partnership, the breaking up of that union is the start of one of the most stressful times in a person's life. In those times, emotions run high and drama often replaces sensible sober untangling of the marriage (or civil partnership) issues. If you use our services, you will not want care and sensitivity. One of our crucial jobs as practitioners is to take as much heat out of the battle as possible and to negotiate at the earliest possible opportunity a settlement of all the issues without the need to go to court. If a dispute is protracted, the parties are the losers. If there is a dispute which can not be resolved by negotiation, we are very well trained and experienced to prepare and put your best possible case to the court.
It is a good thing if each of the parties to try to understand the legal position as best as they can as it can help them to reach a negotiated settlement.
Your legal problems are likely to fall into three categories -
(a) Bringing the marriage (or civil partnership) to a formal end, usually through divorce
(b) The financial arrangements as they will be after the divorce
(c) The arrangements for any children of the marriage or civil partnership
(d) In very serious circumstances of very serious abuse of physical violence, you may need an injunction.
Each of these are discussed in turn
Divorce
Divorce is often regarded as the easy part of untangling the legal issues in a marriage. If both parties want a divorce, it is sometimes not a problem to get that side of it out of the way. Unfortunately, there is still an element of fault required to be proved before a divorce is allowed. When the divorce petition is served on the other spouse/civil partner, it can be very provocative and lead to the entrenchment of positions. Wherever possible, we try to resolve as many issues as possible in the breakdown before a petition is issued.
In both England and Northern Ireland, this area of the law is very similar, though divorce procedure itself is somewhat different. In England and Wales, there is no need to give evidence before the court in order to obtain a divorce. That is not the position in Northern Ireland. In Northern Ireland, legal aid is available for divorce. It is not in England and Wales. However, it is possible for a solicitor in England to draft the divorce papers under the Legal Advice and Assistance Scheme.
The grounds for divorce are that there must have been irretrievable breakdown of the marriage on the basis of one of the following five facts.
- Adultery
- Unreasonable behaviour
- Desertion followed by failure to return for 2 years
- 2 years separation with each party agreeing to the divorce
- 5 years separation.
When an action is launched, the documents which go to the court are the Divorce Petition, the Statement of arrangements for the children (if there are children of the marriage or partnership), the marriage or civil partnership certificate, a reconciliation certificate and the court fee.
The court then issues the proceedings. The Respondent is then served with the Petition, the statement of arrangements for children, notice of the proceedings and a form of acknowlegement of service. The respondent has the opportunity to contest the proceedings. He should send back the acknowledgement to the court and indicate if he is defending the proceedings and (in the case of a 2 year separation petition) consent to the divorce. If he is going to defend the proceedings, he must also file an answer within the time limit specified in the rules (29 days in England 35 in Northern Ireland). If the acknowledgement of service is returned to show that the proceedings will not be contested (and consent given in the case of a 2 year separation petition) the case can then proceed undefended.
In England, an affidavit in support of the petition has to be filed. It will verify the signature of the respondent on the copy of the acknowledgement of service. The affidavit represents the Petitioner's proof of the facts giving ground for divorce. Once the affidavit is filed, the case can proceed undefended. There is usually no need for the hearing to be attended. At the hearing, the judge satisfies himself that the ground and facts are proved and then grants a decree nisi.
In Northern Ireland, the Petitioner sends to the court a certificate of readiness. The case is then listed for hearing. At the hearing, the petitioner gives formal evidence on oath of the facts in support of the petition. The evidence only usually takes a few minutes. While on oath, The Petitioner will identify the documents including the marriage certificate and identify the respondent's signature. The Judge will then conclude the hearing quickly and grant the decree nisi.
In both jurisdictions, 6 weeks has to pass. The petitioner can then apply for the decree absolute by sending in a request with the fee. The Court then grants the decree absolute. That is the point at which the parties are finally divorced.
At the hearing
The financial arrangements as they will be after the Divorce (Ancillary Relief)
If you are able to gain a broad understanding of how the Courts reach their decision as to what financial orders should be made as between husband and wife, then it may help you to reach a decision as to what offers should be made on your behalf to settle the case. It is with this in mind that I set out below the general legal principles involved.
(a)Orders which a court can make
The Court can make an order against either party to the marriage in favour of the other. It can also make an order in favour of children. In summary, the court can make an order in relation to any property within the jurisdiction and it can make an order for maintenance or a lump sum against either party, regardless of where they work or where their assets are. The types of order are as follows:
(a) for either party
(i) Maintenance pending suit
(ii) a periodical payments order
(ii) a secured periodical payments order
(iv) a lump sum order
(v) a property adjustment order in relation to a property in Northern Ireland
(vi) A Pension Sharing/Agreement Order
(b) for the children of the family
(i) a periodical payments order
(ii) a secured periodical payments order
(iii) a lump sum order
(iv)a property adjustment order in relation to a property in Northern Ireland
Please note that although a court can not make a property adjustment order in respect of assets outside of the jurisdiction, it can still take them into account in deciding how to grant ancillary relief.
(b)What the Court takes into account in deciding what order to make
Generally speaking, when a court decides what financial package to make, it makes a balancing exercise between the needs and the resources of each party. There is a lot of case law about how the court would approach that balancing exercise. This area of the law is the same in both Northern Ireland and England and Wales. The law says that the first consideration of the court shall be the welfare of a child of the family under the age of 18. This does not mean the child’s welfare is paramount (as it is in proceedings involving children). It just means that it is the first consideration. The statutes then set out the factors which the court has to take into account in determining what orders it should make. These are as follows:
“(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage 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 in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
(b) the financial needs, obligations and responsibilities which each of the parties to the marriage 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 age of each party to the marriage and the duration of the marriage;
(e) any physical or mental disability of either of the parties to the marriage;
(f) 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;
(g) 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;
(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.”
When you read through that list, you can see that just about anything can be taken into account. Case law has decided that conduct (criterion (g)) will not be relevant unless the conduct is obvious and gross. In effect, it will not take account of conduct unless it has resulted in a financial disadvantage or loss to the other spouse.
(c) How does the law apply to your case?
Unfortunately, it is very unlikely that a proper assessment can be made of how a court is likely to make its decision until all the relevant information has been received. That would include all the information about the finances of both parties. It is to be hoped that we would receive full co-operation from our opponent in making these disclosures just as we would advise you to make disclosures at the earliest opportunity. Sometimes, if the other spouse in the case is not co-operating, we have to obtain court orders to produce documents or provide information. It is to be hoped that this procedure can be avoided. If and when we assess what you or your spouse is likely to get, we will have done that when we have received all of the relevant financial and other information which is capable of being included in the list (a) to (g) above.
As the case progresses, we will get a better and better idea of how you are likely to fare and our guesswork as to how you are likely to fare will become less and less qualified. As soon as we believe we can provide you with unqualified advice on how you are likely to fare, we will let you know.
(d) What is a clean break?
A clean break is a court order which is final and binding on both sides and dismisses each party’s right to apply for maintenance against the other. It also precludes them from any inheritance under the intestacy rules or the right to apply for relief on death of the other spouse under the Inheritance (provision for family and dependants) Act (or (NI) Order) 1975 (or 1979).
A clean break can only be given by the court. It is possible to negotiate the terms for a clean break outside the court, with the Court effectively “rubber stamping” the agreed settlement terms.
(e) Can I negotiate a settlement directly with my spouse or civil partner?
There is nothing to stop you discussing a possible settlement. Sometimes, we will actively encourage that, depending on the circumstances. However, this should not be done without consulting a lawyer. Negotiations, even if they are not binding, can give away your fears and anxieties. If you do want to go ahead and negotiate, we would wish you seek advice as to how you should go about this. Remember also that a clean break is not binding without the sanction of the court.
Our standing advice regarding negotiation of finances differs from our standing advice in relation to negotiation about the arrangements for the children (see below).
(f) How will the arrangements for the children affect ancillary relief
The short answer is ‘very significantly’. Most of the criteria set out in (b) above can relate directly or indirectly to the arrangements for the children but the most important one is (f) (“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”)
Apart from finances, we always encourage our clients to discuss the future arrangements for the children. When we talk about arrangements, we usually mean where the child is going to live and what arrangements there will be for contact with the other parent but it can also include matters such as education.
The arrangements for the children should always be discussed separately and before any financial negotiations. When you decide what you want for your children, you should consider how best the child(rens) welfare will best be met. Sometimes, the arrangements for the children cannot be agreed. If the dispute is about which parent the child(ren) will live with, that issue will need to be decided by the court before there is any discussion or proceedings about ancillary relief. You should consult us immediately if there is a dispute about the arrangements for the child(ren).
(g) What is the relevance of legal costs in deciding who gets what?
Costs are always taken into account in determining the needs and resources of the parties. If there is an ancillary relief hearing, the Judge has to have an estimate from both sets of lawyers of the costs incurred up to that point.
(h) How can costs be minimized?
Unfortunately, if one of the parties is determined to have their day in court, then the case will become expensive. At all times, we will look for ways of settling the case before a final court hearing. We should be able to conduct negotiations on your behalf to settle a case once all of the information is received.
In an ideal and “civilized” divorce, both parties will instruct their solicitors to provide all of the information quickly so that there is the least amount of costs expended. The lawyers will then be able to assess what the parties are likely to get and negotiate accordingly. It is in your interest to co-operate in this way. Any protracted litigation will dissipate the assets of the parties through legal costs. At the end of the day, it is your decision whether to settle or go to court. Just remember that the more costs that are incurred, the less there is to fight over.
If we are in a position to negotiate settlement, which you want, and the other party is unwilling to negotiate, it is possible to put pressure on your spouse by furnishing them with a Calderbank letter. A Calderbank letter, which takes its name from the case of Calderbank –v- Calderbank is a letter setting out an offer package to settle the case. A calderbank letter is not admissible evidence during the final hearing itself. Once the Judge has made his decision as to ancillary relief, he can then look at the Calderbank letter. If he thinks that the other spouse was unreasonable in not accepting the settlement offer, he can make an order that the other spouse pays all of your costs from the time that the Calderbank letter was written.
(i) What is the effect of legal aid?
In England and Wales, all assets recovered or preserved are subject to the Commission's Statutory Charge. Therefore any assets that you are left with after the dispute are caught by the charge. The charge is the amount paid for all legal costs. The charge has to be repaid as soon as the order is made awarding that asset. The exception is the former matrimonial home. The charge can be deferred on the former matrimonial home until the property is sold. No interest is payable on the charge over the matrimonial home.
In Northern Ireland, there is no legal charge over any property recovered or preserved. This does tend to result in more protracted disputes over smaller amounts of money.
The arrangements for any children of the marriage or civil partnership
During divorce proceedings, a statement of the arrangements for the children will have been filed by the petitioner. If there is a disagreement over that statement, the Respondent can at any time contest those arrangements.
Please click here for more information on disputes involving children.
Domestic Violence Injunctions
If you are the victim of domestic violence, you may need an injunction. There are two kinds of injunction. These are Non-Molestation injunctions and Occupation Orders. Domestic Violence does not necessarily have to be proved to obtain one of these injunctions. For more information on Non-molestation and Occupation orders click here.
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Related topics
Child care and disputes involving children
Non-Molestation Orders and Occupation Orders.
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