Email to a friend Print this page

Divorce and Ancillary Matters

Divorce is, obviously, a stressful time for both parties, but many people are not aware that, in the first instance, dealing with ancillary matters is likely to be on a voluntary basis. Only when proceedings have been instituted can matters be put before the Court. Ancillary matters relate to matters “ancillary” to a divorce such as children and finances although the terms tends to be used, albeit incorrectly, at the onset of a separation.

Assuming that the parties can resolve the issues for children relatively amicably (arguably a huge assumption!) the same may not be true of financial matters, in particular, in determination of the division of the assets.

Misconceptions surround the term “matrimonial assets”. In essence, any asset owned by either party individually or assets that are held jointly can be considered matrimonial assets and, as such, fall within the matrimonial “pot” to be divided. For the avoidance of doubt (and to the undoubted dismay of many!) the fact that any one asset is in the legal ownership of one party only does not mean that it will remain with that party. It is not unheard of for one party to shout at the other during an argument “the house is in my name and you won’t get a penny from it!”. Whilst this is an empty threat, it can cause great upset and dismay at the time.

The list of matrimonial assets can, therefore, be extensive and will include the matrimonial home, cars, boats, shares, pensions, businesses and so forth. To place an actual value on an asset can be problematical but the Court does have criteria for evaluating certain assets – for example the Cash Equivalent Transfer Value is used for pensions. A business which, until separation, appeared healthy can suddenly and inexplicably become “almost worthless” and it might be necessary to appoint financial accountants to establish its true value.

Very few assets, inheritance and some elements of compensation monies from a personal injury claim come to mind, might be given slightly different status to the general matrimonial assets but views are mixed in this regard. The two mentioned are of such a personal nature that the Court may be less willing to include them immediately in the “pot”. It cannot, however, be said that such assets are “ring-fenced” because the Court might chose to take them into account if the parties’ needs cannot be met without them. The reason behind this might be that an inheritance is a bequest or legacy intended for a specific person. Similarly, part of the monies from a personal injury relate to pain, suffering and loss of amenity, again, relating to an individual.

In some instances, voluntary disclosure in relation to assets is not forthcoming and resulting delays cause frustration and annoyance to the requesting party. At this point there may be little option other than to institute proceedings to allow the Court to make the appropriate Orders. On occasions one party might endeavour to “hide” their assets and the information provided is neither full nor frank. A Judge can infer what he/she chooses in respect of such non-disclosure and the reluctant party may find himself/herself on the receiving end of a less than favourable Court Order, particularly, in relation to the costs of the other party.

There are two Decrees granted by the Court following the instituting of a divorce petition, namely, the Decree Nisi and the Decree Absolute. The Decree Nisi is obtained in the first instance followed six weeks and a day later by the Decree Absolute, if applied for by the Petitioner. The Petitioner being the person who instituted divorce proceedings. There are legal consequences resulting from the granting of the Decree Absolute which brings to an end the marriage and the status of the parties as spouses. Ramifications when a party is no longer a spouse arise in relation to Social Security, pensions, Wills, Trusts and Housing qualifications to name but a few. A decision is quite often taken to delay the application for the Decree Absolute before the resolution of ancillary matters is complete for this reason.

It is necessary to explode the myth that a party’s behaviour in any way effects the division of matrimonial assets. The basis of the breakdown of a marriage is not relevant to the splitting of assets unless the conduct of a party is so extreme that it would be inequitable to disregard it. The “no faults” divorce is now well established and, regardless of how hurt or otherwise one party may be by the behaviour of the other, the chance of financial penalty to the hurt spouse is extremely rare.

Each case is treated on its own merit taking into account the specific circumstances of the parties with particular reference to such factors as, for example, the length of the marriage, the age of the parties, the earning capacity of the parties and any special contribution to the marriage by one of the parties. The Court can exercise its discretion when deciding ancillary relief which, undoubtedly, allows for a greater degree of flexibility albeit not forpredictability in the outcome.

It cannot be to anyone’s advantage for matters to be “dragged out” – unfortunately certain parties may consider this a tactical manoeuvre to wear the other party down. Whilst there is a limit to the one party’s ability to speed up responses to requests, efforts can be made to ensure that at least one side acts so that all can be done to accelerate the process by providing all relevant information at the earliest opportunity.

THIS ARTICLE IS FOR INFORMATION PURPOSES ONLY AND NOT BY WAY OF LEGAL ADVICE. PROFESSIONAL LEGAL ADVICE SHOULD BE SOUGHT BEFORE ANY ACTION IS TAKEN.