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Separating, or filing for divorce or dissolution of your civil partnership is a highly stressful time, but it is in your interest to try to agree short-term financial matters with your ex-partner. If you cannot agree or are worried your ex-partner may deal with the finances without telling you, think about what you can do to protect your position.
The proceedings concerned with the financial matters are known as ancillary relief because the financial matters are seen as being ancillary to the divorce proceedings.
Factors the Court would consider:
The aim of the court is to achieve fairness. Following a landmark decision called White v White in 2000, the court has to consider an equal division of assets built up during the marriage, unless the marriage was of short duration, or the assets are insufficient to satisfy capital needs in particular re-housing.
When deciding what if any orders to make it must give its first consideration to any minor of the marriage. In S25(2) Matrimonial Causes Act 1973 there are eight factors to which the court must pay particular regard to, when considering what order to make in relation to a spouse.
(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;
(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;
(g) The conduct of each of the parties, if that conduct is such that it would in the opinion of the court is inequitable to disregard it;
(h) The value to each spouse of any benefit which one spouse because of the divorce will lose the chance of acquiring (most usually pension provision).
Court Process in Ancillary relief Cases:
Application for ancillary relief
Family Proceedings Rule 2.61A requires that an application for ancillary relief must be made by using Form A. This can be submitted by either spouse and must be sent to the court where the case is pending. A fee of £210 must be paid to the court at this stage. Upon filing Form A by either spouse the court will fix a date for the first appointment between 12 and 16 weeks after the date of the filing of the notice, and will also serve a copy of the notice on the other spouse/party.
The first appointment
Before the First Appointment, each party will have exchanged a document known as Form E, which contains financial information. At the First Appointment hearing, discussions will take place with the judge as to what, if any, additional information is required before the case is ready to proceed to the next stage.
The FDR appointment
The second of the court hearings in respect of an ancillary relief application is the Financial Dispute Resolution ("FDR"). The FDR is a meeting held for the purpose of discussion and negotiation. Prior to the FDR the applicant will file at Court all offers, proposals and the responses to these. Parties attending the FDR appointment must use their best endeavours to reach agreement on the matters in issue between them. At the conclusion of the FDR appointment, the Court may make an appropriate Consent Order (if the parties have agreed terms of settlement) but must otherwise give directions for the future course of proceedings, including, where appropriate, the filing of evidence and fixing a final hearing date.
This hearing usually takes a whole day and is formal. Both parties have to give evidence on oath, and are cross-examined by the other party's barrister. You will be asked at length about your personal and domestic circumstances, your financial affairs, your earning capacity, what qualifications/work experience you have and your household bills. You can also be asked questions about any new partner and their finances. At the end of the hearing, the judge will make a final order, which is binding upon both parties.
The Judge will make an order they think is fair based on what they have heard. Usually, they will be imposing a compromise settlement on both of you, and will rarely give either party what they actually want. Parties are therefore encouraged to reach a settlement prior to any final hearing.
Should you require further advice in regards to the above, please fill in the form on the right hand side of this page and we will contact you as soon as possible. Alternatively contact us on 01904 642727 for your FREE 30 minute consultation at our York, Leeds or Harrogate offices.