Client Information: Ancillary Relief
(Financial issues in a divorce case)

Last updated: 04/2008

What is ancillary relief?

Ancillary relief is lawyer speak for the financial orders within divorce and judicial separation proceedings. If you all your opponent has applied to the court for a divorce or judicial separation the court can make orders about:
1. Maintenance payments between spouses.
2. Transferring property.
3. Ordering the sale of property and division of the net proceeds the sale.
4. Transferring lump sums of money and other assets.
5. Compensation for the loss of pension rights and other pension orders.
Since the child support agency was established, the court no longer has jurisdiction for child maintenance orders, although if child maintenance is agreed, it can be incorporated in an order.

Who can apply?

Either spouse. The petitioner usually makes an automatic initial application in the petition. However, both the petitioner and the respondent have to file another form, a Form A to start the ancillary relief case and bring the matter in front of the courts.

Pilot Scheme

Some courts operate a pilot scheme for ancillary relief cases. This means that the forms and procedures are different from usual. The idea is to have tight deadlines and for the court to “lead” the case rather than the parties. If your case is in a pilot scheme court, we will inform you and let you know the implications. The basis on which the court makes judgement remains the same as in other courts.

The Legal Principles

The court when considering what, if any financial orders should be made in an ancillary relief case, have to take into account a number of factors listed in section 25 of the Matrimonial Causes Act 1973. First consideration is always given to the welfare whilst a minor of any child of the family who is under 18.
The other factors are:
1. The income, earning capacity, property and other financial resources either party to the marriage has or is likely to have in the foreseeable future. This includes the earning capacity which the court considers it is reasonable for a party to the marriage to take steps to acquire.
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 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 mental or physical disability of either 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 home or caring for the family.
7. The conduct of each of the parties, if that conduct is such that it would be in the opinion of the court be inequitable to disregard it; and In proceedings for divorce or nullity the value to each party of any benefit they may lose on the dissolution of the marriage, for example a pension.

Clean break

The court is under specific duty when there is an ancillary relief application to consider whether it would be appropriate to end one of the parties financial obligations to the other. Therefore when making a maintenance order the court is under duty to consider whether the orders should be made for a fixed term only or indefinitely. The court is also obliged to consider whether maintenance orders are appropriate at all since this means that there will be a continuing financial relationship between the parties.

Financial Information

In ancillary relief cases a lot of financial information is required from both parties. The legal advisors and ultimately the judge cannot give advice or make an order without full knowledge of both parties financial affairs. If an agreement or order is made and then it is discovered that one party deliberately withheld relevant information, the agreement or order can then be overturned.
As everything turns on financial disclosure, it makes sense to try and have full disclosure between the parties as early as possible in the case. You, the client, have to do a lot of information gathering and work with your legal advisor to make sure that, as much information has been disclosed as early as possible. Not only is this essential in order to provide the information, it helps keep costs down.

Time estimates.

Below are some estimates of how long an ancillary relief case would take to reach various stages. Some cases take much longer than this; some, very rarely, take much less time. Each case is individual and a lot depends on you providing information quickly, as and when requested.

Start of case to settlement after negotiations between the parties with no court proceedings-3—5 months.
Settlement before the first court hearing-4—8 months
Settlement after second or further court hearings- 4—8 months
Contested final hearing.- 6—12 months

Offers to settle

Offers to settle an ancillary relief case can be made by either party and at any stage during the proceedings, but they are usually made after as much financial disclosure from both parties has been obtained.
Within the court proceedings you are often advised to make a “Calderbank offer”.
A Calderbank offer is made when you and your legal advisors are confident that you can predict roughly what the judge would order on a final hearing. Once the Calderbank offer is made, if your opponent does not accept it, the Calderbank offer is not disclosed to the judge at the final hearing. If the judge then makes an order which is the same as or less favourable than your Calderbank offer, your opponent is at risk of paying your legal costs from the date of the Calderbank offer. However, this is not guaranteed; it is up to the judge at the final hearing to decide whether this was appropriate. Calderbank offers are therefore very useful negotiating tools

Costs

Legally aided clients:
1. Start of case to settlement after negotiation between parties with no court proceedings-£500-£1000
2. Settlement before the first court hearing- £750-£2000
3. Settlement after a second hearing or further court hearings-£1500-£3000
4. Contested final hearing-£2500-£5000
  N.B the legal aid boards statutory charge often applies in ancillary relief cases if you recover and/or preserve property or money. This has major implications on any settlement or order. Please refer back to the letter sent to you when you applied for legal aid for details.
Privately funded clients.
1. Start of case to settlement after negotiations between the parties with no court proceedings-£750-£1500
2. Settlement before the first court hearing-£1000-£2-3000
3. Settlement after a second or further court hearings-£2000-£4-5000
4. Contested final hearing-£3500-£10000

All clients are at risk of being ordered to pay some of all their opponents costs.

Mediation

This is an option for all clients, whether paying privately or when legally aided.

Family mediation is a process of negotiation with your husband or wife about the practical effect of separation. A mediator will sit round a table with you and your husband or wife to help reach a agreement. This can be useful because the breakdown in a relationship can make such negotiations difficult or painful. A mediator is trained to keep a discussion going forward and to minimise time spent arguing about the past.
If you would like to know more about mediation or details of the local mediation service please do not hesitate to ask.

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