2. ANCILLARY RELIEF
Divorce solicitors for men see recurring problems in ancillary relief. Once divorce proceedings have been commenced and, in particular, once decree nisi has been granted the Courts have power to make final orders for maintenance, pension sharing, transfer of property and/or capital etc. If husband and wife cannot reach agreement then a Court will be asked by one of the spouses to decide the issue. There are several important points to be aware of here. Perhaps the most important, and the one which causes greatest resentment and confusion, is the fact that in the overwhelming majority of cases the reasons for divorce are not relevant in coming to any decisions on the subsequent financial arrangements.
It does not matter who divorces whom for what - that almost always has no impact whatever on the decision making process when it comes to resolving financial issues. This can seem hard when one of the parties feels the other has been almost exclusively responsible for the breakdown of the marriage. It is a particularly common feeling in the case of adultery, for example. There is a widespread feeling that the "guilty" party ought in some way to "pay" for what they have done and it often comes as a complete shock to discover this is not the case at all. In deciding financial issues the Courts are not concerned at all about who was to blame and simply do not want to know about the conduct of either party during the marriage unless the circumstances are wholly exceptional.
This is not prejudice on the part of the Courts: the rules which they have to apply are laid out clearly in law laid down by Parliament and an enquiry into the respective degrees of fault of the parties does not feature in the list. The relevant criteria are set out in the Matrimonial Causes Act 1973. If you read those criteria they seem at first sight perfectly plain and reasonable. A lay client who takes the trouble to read the relevant section will see, for instance, that it reads in part,
"It shall be the duty of the court in deciding whether to exercise its powers...to have regard to all the circumstances of the case...and so to exercise those powers as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down.."
Most people are likely to seize on those words "all the circumstances of the case" and "having regard to their conduct" as meaning that their spouse's bad behaviour can and should be taken into account but it does not quite work out like that. Husbands (and it is usually the husband) who are inclined to think like that soon discover that the words" so far as it is practicable" have a much greater weight than they could possibly expect. It is probably easiest to explain by example.
Say there is a husband and wife who live in a modest home together with two young children. There is a mortgage on the home and some equity. There are no other capital assets. The husband has paid the mortgage instalments while the wife has remained at home to look after the children from the time they were born. At first glance the husband might expect the home to be sold and the proceeds divided equally between himself and his wife. That will almost never happen.
What happens in this case is that the Court will look at the "needs" of the parties and it will be found that the "need" of the wife and children to have a roof over their head will greatly outweigh the "need" of the husband to have some part of the capital which was tied up in the matrimonial home. Young children almost always remain with the mother and so the overwhelming likelihood is that a Court would order the matrimonial home to be transferred into the sole name of the wife. This is despite the fact that the husband may have made all the financial payments. The Courts regard the needs of the wife and children to be much more important in cases such as these.
The truth of the matter is that is very rarely practicable to put both the parties into the financial position they would have been in if the marriage had not come to an end. In the overwhelming majority of cases there is simply not enough money available to enable both the husband and the wife to buy themselves suitable alternative accommodation and so a choice has to be made as to who has the greatest "need". It is almost invariably the case that the Courts put the needs of the wife and children before that of the husband. This can seem, and is, very hard to the man.
Theoretically the law is equal for husband and wife but in practice, because the residence of young children tends to be with the mother, financial settlements of capital or transfers of property to the wife are almost always very substantial unless the marriage has been very short or there are other truly exceptional circumstances. This is the hard fact of the matter and it is difficult enough for most husbands in this position to accept but there are many additional factors which are likely to add to the man's sense of grievance.
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