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ANCILLARY RELIEF IN DIVORCE IN ENGLAND

Ancillary relief is about your financial rights, entitlements and obligations in divorce in England and it almost always needs legal advice. You would be very unwise to enter into any agreement about the financial issues without first taking legal advice from a specialist divorce lawyer. This is where a solicitor's advice adds most value in a divorce, where mistakes are easy to make and where they can be very expensive indeed. Most non-lawyers have ideas about the financial aspects of divorce which are plain wrong. Do take legal advice before entering into any agreement about the financial aspects of divorce. If there is one piece of divorce advice for men they should take on board it is this. Men very often think they can settle financial issues arising from the marriage without any legal advice. This is a big mistake and it is a mistake typically made by men.

The first thing to remember is that the ancillary relief proceedings in any divorce in the UK can be settled by agreement between the spouses with minimal assistance from lawyers and many couples do this perfectly well. Before coming to an agreement, though, it is usually sensible to find out what your rights and options are so that any agreement is based on an informed choice. Where there are any significant assets involved (or, possibly, other intractable problems such as debt) it is normally best to take a solicitor's advice before making any major decision.

Another thing to beware of is the temptation to approach the problem emotionally rather than rationally. This is a particular problem in cases of adultery where there is a tendency to want revenge. A converse problem which can happen in cases of adultery is that the 'guilty' party wishes to compensate the other spouse by being generous in any financial settlement. If you do not approach these problems with a cool head it can cost dear in the long run. This is, of course, easier to say than to do but it is something worth bearing in mind. If you do not then there is a serious risk that only the lawyers will benefit and the marital assets available for distribution between the parties will be eroded by needless legal costs. Impartial advice from a solicitor who looks at the circumstances dispassionately can be very useful for this reason alone.

You should not make the mistake of thinking that all legal costs are a waste of money. In this area of divorce it is usually money very well spent and repays the investment many times over. Mistakes here can be very expensive and you can end up paying for them for the rest of your life with so called 'joint lives maintenance' for example. You have to approach the problem rationally. You can usually work out the value added by legal advice. For instance, take the following example:-

A husband and wife with no children, both of whom are working and earning similar salaries, have been married for twenty years and have (a) a jointly owned house worth, say, £100,000 free of mortgage and (b) the husband has £100,000 in savings in his own name. The husband has committed adultery and the wife seeks the house for herself and half the savings. She will not compromise on this because she wants the husband to 'pay' for the adultery.

Under circumstances such as these the husband should certainly resist and take the matter to court. Indeed, if his wife is adamant on receiving half the savings he would probably be well advised to offer to transfer the house into his wife's sole name and offer to pay her, say, £10,000 from the savings. He may then sit back and watch the matter go to court if his wife is still insisting on her demands. He will obviously have to pay his lawyer to do this and that may cost him, say, £5,000. (It will also, presumably, cost his wife a similar amount although the figure is quite hypothetical and just for the sake of example).

When the ancillary relief application gets to court a judge will say (probably), "Well, this is a long marriage. The total assets are £200,000. The wife wants to remain in the house and so I will order that it be transferred into her sole name. The husband can keep the savings and so that gives £100,000 to each of them". If that happens (and that is a quite likely outcome in these particular circumstances).

If the husband had not fought this case he would have had to pay £50,000 of his savings to his to his wife in order to settle the case by agreement but as things have actually turned out he has retained the £100,000 by going to court.. Paying out for legal advice was a sensible thing to do in this instance - as was taking the case the whole distance to a final hearing before a judge. He incurred, say, £5,000 in legal costs to recover £50,000 he might otherwise not have had.

This is a straightforward example but this type of situation or some variant upon it recurs all the time in divorce law. It is important to understand that no two cases are alike. Knowing what the courts are likely to award (and this case might well have been different if there had been children or if the value of the property were different or if the wife did not work etc etc) in a given case and choosing the most beneficial approach in the light of the stance adopted by the other side is a matter of skill and judgement. It can save (or lose) a client considerable sums of money depending entirely on how it is handled.

Do please continue to find out more about ancillary relief.

 



 
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