Relief on Divorce & Separation

Ancillary relief refers to orders made on the occasion of divorce, nullity, or judicial separation. The child support legislation has placed the responsibility for financial arrangements for children with the statutory agency.

The Matrimonial Causes Order, NI, 1978, as amended by the Matrimonial and Family NI Order, 1984, and 1991.

Both the High Court and County Court have jurisdiction to make orders in relation to financial provision. The court seeks to distribute – provide a fair distribution of family assets having regard to the criteria set out in legislation. It is recognized that after divorce or separation, where two separate homes must be established, the standard of living may not generally be maintained as before.

An application can be sought for ancillary relief for an eligible child. The applicant may be made by a parent, guardian, or other person in whose favor a residence order is made. It may be made by the official solicitor if there is an appointed guardian ad litem of the family.

An eligible child is a child of both parties or a child who was being treated as such by both parties other than one who has been boarded out by the social services. The child must be under 18 in the case of property transfer.

In the case of periodical payments, the maximum age is generally 18, but these payments may continue in respect of an older child who is or should be receiving instruction at an educational establishment or undergoing training for a trade, profession, or vocation. The waiver and education training conditions may be waived by the court in the case of a child over 18 where there are special circumstances.

Either a spouse or an ex-spouse may apply to court on the basis that the other person has failed to provide reasonable maintenance or failed to make a proper contribution towards the reasonable maintenance of a child of the family.

The court may make orders pending a hearing for ancillary relief. The order may restrain a party from frustrating the ultimate order. A spouse may be restrained from dealing with the finances or property which may be the subject of the ancillary relief. Transactions may be set aside where there is an intention to frustrate proceedings.

Ancillary relief covers each of the following: A variation order, property adjustment order, maintenance pending suits, financial provisions order, avoidance of disposition order.

Lump sum orders may be enforced by the sale of property, execution garnishee, charging order. Periodical payments may be enforced by attachment of earnings or through registration in the magistrates’ court.

Maintenance pending suit relates to arrangements for maintenance until the main hearing. A court may grant maintenance pending suit in the case of divorce, nullity, or judicial separation.

The order may require either party to a marriage to pay to the other such periodical payments as are specified from the date not earlier than the presentation of the petition and ending on the final date of the termination. The court takes account of the same factors mentioned below in relation to determining the application. Maintenance is such as it would be reasonable in the circumstances.

Where the issue of financial provision for children arises, the court must consider whether its jurisdiction applies by reason of the child support legislation.

The court may make the following orders: Periodical payment orders for such a period as may be specified. An order securing such orders in the manner specified. An order for payment of lump sums. An order for the benefit of a child and family with a periodical or lump sum which may be secured as above. An order for financial provision.

Lump sum payments are more in the nature of one-time payments. They facilitate a clean break settlement. There are published criteria in respect of lump sum payments.

Lump sum payments for children may be granted from time to time. They are relatively rare unless the parents have very substantial means. Even prior to the child support legislation, the courts preferred periodical payments as more appropriate for a child’s maintenance needs.

The courts maintain jurisdiction to grant lump sums.

The Pensions NI Order gives the courts practical powers to include pensions in the division of assets. Death benefits, lump sums in retirement, pensions, and payments are considered. The cash equivalent of pensions is used to quantify the value of pensions and allocate them in divorce.

Orders for ancillary relief may be changed or varied where there is a change in circumstances. This is centrally relevant to periodical payment. It can apply to lump sum statements and installments. It does not apply to one-off sums or property adjustment orders.

In considering a variation, the court does regard to any changes in the matters preference to which it was required to have regard for making the original order.

Property Adjustment Order. Property includes all the assets of the parties. It includes prospective interest in inheritances and pensions.

A court may order that the property be transferred or settled. It may order the property be sold and the proceeds be settled. Property may be transferred into a trust or otherwise have the benefit of a child of the family.

A property  commonly, the family home may be  transferred to the parent who care principally  for the children. Transfers may be conditional or unconditional. They may be subject to a charge. They may be ordered in return for payment of a periodical sum or a lump sum or reduced periodical payments.

A transfer may be ordered to seek to achieve a clean break. An order can be made requiring one spouse to settle the property for the benefit of the other spouse or child. The court may order sale and may make such directions as are necessary to give effect to it.