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ANCILLARY RELIEF DIVORCE PROCEEDINGS - S25 MATRIMONIAL CAUSES ACT 1973

Ancillary relief divorce proceedings in England are governed by section 25 of the Matrimonial Causes Act 1973 but there still remain several other factors which may also play a part.

In particular in ancillary relief proceedings the courts are directed to have regard to the possibility of a "clean break" between the parties. Where there are children of a marriage the parties' obligation to maintain their children is on-going until the children cease to be dependent and that is not a responsibility which it is possible to bring to an end. Even if the parent with day to day control of the child did not want to claim maintenance for the children from the former spouse the Child Support Agency could well insist upon the payment of such maintenance and the children themselves have the right to apply for it.

Nevertheless, as between ex husband and wife it is normally thought best if possible that there should be no continuing obligation and that each should get on with their own life. A divorce clean break in this sense is more often than not what the parties themselves want and the courts are directed to try and achieve this if possible. Sometimes this will mean, for example, that the husband agrees to give the wife more by way of lump sum than that to which she would otherwise be entitled in order to buy off any claim for maintenance. Very often this suits both and allows both to start with a clean sheet.

On the other hand, sometimes it is impossible to achieve a clean break or, perhaps, the parties do not want it and would prefer that there be a continuing tie by way of maintenance. If, for instance, the wife did not have any income to support herself, the husband was in well-paid employment and there was no significant capital available for division it is quite possible that an order for continuing maintenance would be appropriate.

Even in this latter event the courts are also directed to consider whether any order for maintenance ought to be limited as to time. So even if a clean break is not achievable immediately the courts will consider whether it can be achieved in the foreseeable future. If, for instance, the wife has not worked for some time but may be able to resume her previous employment after taking some sort of re-training course the husband might be ordered to pay maintenance for the duration of the retraining and for a reasonable period thereafter. After that point the maintenance would cease and the wife would be expected to provide for herself.

Although these powers are available to the courts (and they are directed to take them into account in making any financial provision order between spouses on divorce) it is fair to say they are infrequently exercised. More often than not the parties themselves will want a clean break. If one of the parties wants continuing maintenance the onus is on her to justify it because the presumption is basically against it wherever possible.

Another factor which is not mentioned in the Act but which can nonetheless be important is delay in asking the courts to intervene. Quite frequently a husband and wife might obtain a divorce and do nothing about getting a formal order for financial provision from the court. The reasons for this might vary. Perhaps they feel that they have no significant assets or perhaps they have made an informal division of the matrimonial property between themselves.

Under these circumstances the courts do, theoretically, have the right to entertain an application for financial relief from either party to the former marriage. This may be years later because there is no formal time limit for making an application. Nevertheless, the courts are likely to take this delay into account in coming to any decision. The reasons for this are two fold:-

The fact that the parties have lived apart for a considerable time independently of the other is persuasive of the fact that neither is dependent on the other and so there is no good reason why one should make financial provision for the other. The longer the delay the stronger this argument becomes.

It might be regarded as unfair to spring an application for financial relief on the other when he/she has so ordered his/her life as to think that any claim from a former spouse is a thing of a past. Again, the longer the delay the more persuasive this argument becomes.

Despite these points it is very rarely sensible to leave financial matters unresolved after a divorce precisely because it leaves open the possibility of a claim perhaps years later. Very few people would regard it as fair that an ex spouse should have a share in wealth acquired since separation or perhaps divorce. Yet the law allows the courts to order this. Shutting out this possibility once for all is a very good reason for always formally settling financial matters in a divorce.

Finally, there is the presumption of equality. Since the House of Lords case of White v White the courts have worked on the assumption that provided the marriage has lasted long enough a marriage is a partnership and that therefore the presumption is that all the matrimonial assets should be divided equally. It is for the spouse who seeks to depart from equal division to persuade the court why it would be right to depart from equality in any particular case. This notion has now become very pervasive so clients regularly assume that everything will be divided equally. However, any practitioner will tell you that in practice it is rare to see a case where everything is divided equally. There are all sorts of reasons why it may not be practical or fair in any given case.

Please continue for a fuller consideration of the law and practice of ancillary relief divorce proceedings.

 
 

 
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