Ancillary relief is the procedure for obtaining a financial order from the court following a divorce or the end of a civil partnership. Divorces can be stressful and complicated and whilst there are likely to be many matters in dispute a large part of it will come down to the financials. Most people are not able to come to a settlement on their financials without the assistance of the court.

The financial order itself is separate from the divorce and often takes longer to finalise than the divorce. If the parties can agree the financials between themselves then they can make a legally binding agreement known as a “consent order”. Consent orders are cheaper and less time consuming than financial orders, but they still usually require the assistance of solicitors.

An ancillary relief order is a formal arrangement agreed in court. It usually includes agreements about money, property and other assets, including what maintenance payments, if any, need to be made. Once the court has made an order this cannot usually be changed, unless there is a change in personal circumstances or if one party is found to have been lying.

Ancillary relief begins with either party submitting a Form A to the court. This is then followed by the following three stages:

• The First Appointment
• Financial Dispute Resolution (FDR)
• Final Hearing

After receiving the Form A the court will set a date for The First Appointment, which should between 12 and 16 weeks after the date the Form A was filed. By The First Appointment the parties would have exchanged financial information, through the use of a Form E. Both parties complete this form not less than 35 days before The First Appointment. The Form E sets out their financial situation including their money and assets as well as their future needs for income and capital. These forms are then exchanged with a copy given to the court. Prior to the first appointment the parties will scrutinise the other’s form, ask questions and request further information. Then at The First Appointment, a judge will give directions on how the case will proceed including referring the case for FDR or mediation.

FDR is an informal hearing where a judge helps the parties to reach an agreement on any disputed matters. If this is unsuccessful then the matter will progress to the final hearing, where a different judge will consider all the facts and make a final decision. Throughout the ancillary relief process parties are encouraged to come to an agreement or settlement before reaching the final hearing.

A big aspect of ancillary relief proceedings is who gets the martial home and the court will attempt to look at all the facts and then try and split things up as fairly as possible. For example, if there are children involved, then the court will look at the children’s needs above either of the parties and will make orders for maintenance payments and housing arrangements. Other important considerations include both party’s earning abilities, future income and capital needs, the standard of living the parties are used to and what contributions each person made during the marriage – both financially and non-financially. In most cases the court will try and split matters so that there is a “clean break” i.e. everything is shared between the parties and there are no future arrangements needed. However, this is not usually easy because most people will not have enough money or assets to split, in which case the court will order the person with the higher income to make regular payments to the other, this is known as a “maintenance order”.

Ancillary relief proceedings can be complicated as well as emotionally and physically draining and it is strongly recommended that you obtain both legal and financial advice before starting the process.

What is it?

A prenuptial agreement, or premarital agreement, is a contractual agreement entered into by the parties to a marriage, prior to that marriage, which dictates how the parties will divide their financial assets if they are to divorce. Parties to a marriage are often reluctant to enter into a prenuptial agreement, as the last thing on their minds prior to their marriage is their divorce. Further, these instruments have received criticism from religious circles for clouding vows of love and affection with financial contracts. However, prenuptial agreements are often very sensible devices, which can avoid lengthy and expensive litigation and reduce hostility between the parties upon divorce. In particular, parties to a marriage are much more readily able to objectively agree on the fair division of assets before a marriage has begun as opposed to after it has ended.

Is it 100% legally binding?

The simple answer is no. Traditionally prenuptial agreements were not enforceable at all, however the situation has changed since then and now they are certainly influential in a court’s decision. The problems lie in the marital situation changing after a prenuptial agreement has been made; such a change is often not considered at the time of drafting the agreement. Changes can include the birth of children, a windfall such as a lottery win or the ill health or disability of one party. In such a situation the court would look to provide for the needs of the children and parties, irrespective of what had been previously agreed.

So, where there has been no unforeseen changes to the parties’ circumstances since the making of the prenuptial agreement a court will be reluctant to change what the parties have already agreed on.  This is likely to be the case in a short marriage.

The question now is how much weight a court will attach to a prenuptial agreement. In deciding this, a court will consider:

1. Was the agreement made voluntarily after seeking independent legal advice with knowledge of the relevant information?
2. Did the parties intend the agreement to be effective? (This is inferred if the agreement is governed by English law)
3. Are there any factors that make it fair or just to depart from the prenuptial agreement?
   

Why make a prenup?

Ideally parties to a divorce can agree on the division of financial assets without the need for a court to rule on it. Talking about finances from an early stage can promote openness in relation to the parties’ finances and they are less likely to assume certain things, which may be false. This ‘cards on the table’ approach throughout marriage will often mean that, upon divorce, the parties are already in broad agreement and need only concentrate on the grey areas, saving time, money and ill feelings.

Even if the services of a judge are required in splitting up the parties’ assets a prenuptial agreement can prove an invaluable tool in assessing their intentions with regard to property rights and, in some cases, the judge will simply order what has already been agreed.

How do I make a prenup?

In order to stand the best chance of decisive or compelling weight being given to a prenuptial agreement and hopefully avoiding the courts altogether it is advisable to:

1. Seek independent legal advice before making a prenuptial agreement;
2. Include in the agreement that the parties intend to enter a legally binding contract and a declaration that the solicitor advising them has the relevant expertise to give advice;
3. Agree a time for reflection, allowing each party time to make an independent, calculated and informed decision to enter the contract;
4. Ensure the parties have disclosed to each other all relevant information about their respective finances and circumstances; this can be attached to the agreement;
5. Enter into the agreement some time before the marriage takes place; at least 21 days;
6. Consider how to provide adequately for any children of the marriage;
7. Consider a review of the agreement during the marriage (a post-nuptial agreement).

Whilst there is only one ground on which a Petition for Divorce can be presented to the Court by either party to a marriage; being the fact that the marriage has irretrievably broken down, the parties must satisfy the Court of one or more of five facts to ‘prove’ this breakdown. The fact is merely evidence of the breakdown so does not need to have actually caused the breakdown itself. This means that the fact could occur after breakdown but still be used as evidence of it.

Once the Court is satisfied that a fact is proven, then it must grant the parties a Decree Nisi unless they have reason to believe that it has not broken down – for example where the parties began living together again before the divorce was granted.

It should be noted that the grounds for a breakdown of a Civil Partnership effectively mirror those of a Divorce, except in relation to the fact of adultery.

The five facts are:

1.  Adultery

This fact requires two elements: a) adultery b) intolerability.

Adultery can only be claimed where sexual intercourse occurred between two persons of the opposite sex, one or both of whom is or are married. Adultery can be proved or inferred by a confession of the respondent, birth of a child to the wife on proof that the husband was not the father and evidence that the Respondent and a member of the opposite sex are cohabiting.

Intolerability does not have to be as a consequence of the adultery, it could also be because of some other behaviour of the Respondent. Additionally intolerability is subjective – the Petitioner must simply show the Court that they find it intolerable to live with the Respondent. Generally in uncontested Divorce cases the Court does not need any proof of the intolerability of the situation.

For both these elements, where the parties have lived together for a period or periods together exceeding six months after the Petitioner found out about the last act of adultery/intolerability, then the Petitioner cannot rely on this ground.

2.  Unreasonable behaviour

This fact claims that “the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent”.

The Court will take an objective view on whether or not the Petitioner cannot reasonably be expected to live with the Respondent. The Court must make a value judgment about the Respondent’s behaviour and its effect on the Petitioner. They will have regard to the history of the marriage as well as to the personalities of the individual spouses.

The behaviour does not need to be weighty or grave, nor does there need to be proof that the Respondent had any intention to inflict misery on the Petitioner. In practice each case depends on its facts, but usually in an undefended Divorce the Court will look for three to six examples of behaviour. It is best practice to provide an example of the first, worst and last acts to show the length of time, the major incidents and when the last example occurred.

Examples can include:  physical violence, verbal abuse (insults, threats, nagging), demanding sexual intercourse too often or not agreeing to it at all, cruelty, failure to provide money or food and failure to provide affection or attention. The mere fact that the Petitioner has become bored with the Respondent, or that they are incompatible will not suffice.

Where the parties live together for more than six months after the last incident of behaviour cited in the Petition, the Court will take the length of the cohabitation into account in determining whether the Petitioner can reasonably be expected to live with the Respondent. The longer they have stayed together the less likely that the Court will grant the Petition. It is always open to the Petitioner to show good reason why they continued to live together.

3.   Desertion

For this fact it must be shown that the Respondent deserted the Petitioner for a continuous period of at least two years immediately preceding the presentation of the Petition.

The elements needed include:

a)  Separation. In most cases the parties will be living apart, however it is also possible to be living under the same roof but be considered ‘separated’ if their common life has ceased. The Court would then examine to what extent they share domestic life – do they cook for each other, eat and sleep together etc.

b) There must be an intention to desert, to bring the marriage permanently to an end.

c)  The Petitioner must not consent or agree to this separation.

d)  The Respondent must not have just cause to leave.

e)  The desertion must be continuous. Several periods of separation cannot usually be added together to form the two year period.

f)   The desertion must immediately precede the presentation of the Petition.

Any period(s) of time when the parties lived together during this separation will not be counted as long as it was for less than six months, however this time period cannot be used to make up the two years desertion itself.

As this fact is so technical, in practice it is rarely relied upon.

 4.  Two Years Separation by Consent

This is where the parties have lived apart for a continuous period of at least two years immediately preceding the Petition and the Respondent agrees to the Divorce being granted.

The test of separation for this fact is similar to the one mentioned above; the parties must be living completely separate lives, even if living under the same roof. It should be noted that physical separation may not be enough. There must also be a mental element; one of the party’s must regard the marriage as at an end, never intending to live with the other spouse again.

Consent is usually indicated by the Respondent in his Acknowledgement of Service form which he returns to the Court on receiving the Divorce Petition. However, the Respondent can withdraw his consent at any time before the Decree Nisi is granted and he need no give a reason for it. Additionally the Respondent can apply to the Court to rescind the Decree Nisi should it transpire that they were misled into giving their consent.

Here again the parties cannot have lived together for a period or periods which together exceed 6 months. Under this amount of time will be ignored, however it will not be included in the calculation of two years separation.

If this fact is the only one relied upon, the Respondent may apply to the Court for consideration of their financial position following the Divorce. This means that should the Respondent make such an application, the Court will not grant a Decree Absolute until they are satisfied that (a) the Petitioner is not required to make financial provision for the Respondent and (b) that any financial provision provided for is fair and reasonable, or is the best that can be made in the circumstances.

5.  Five Years Separation

This fact simply requires the parties to have lived separately for a continuous period of at least five years immediately preceding the Petition. In this situation there is no need to obtain the Respondent’s consent. Here too the Respondent can ask for their financial position to be taken into account before granting a Decree Absolute.

In this fact the Respondent could also put forward a defence stating that the dissolution of the marriage would result in grave financial or other hardship and in all the circumstances it would be wrong to dissolve the marriage. The Court will consider all the circumstances, including the parties’ conduct, their interests and the interests of any children.

In practice it can be difficult to establish that the hardship is grave enough to warrant refusing a divorce.

The above information kindly provided by Shmuel Portnoy of Darlingtons Solicitors. Get in touch with Darlingtons for advice on the full range of divorce or family law issues.