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Ancillary Relief and Separation

Ancillary Relief and Separation

Ancillary relief is the global term given to financial matters that need to be resolved following separation, divorce or dissolution of a civil partnership. All the property and money that you have, as a couple, once shared, needs to be divided fairly and according to the law. Our Family Law Department will give you clear positive advice to assist you in reaching a just and cost effective solution. We will deal with your case with empathy and support at a difficult and often emotional time and see you through the dividing of assets including pensions, and negotiation of maintenance where appropriate and any child support needed.

Recently decided cases within this legal area has seen the liquid assets of relationships divided fairly between the two parties, unless there is a good reason for alternative arrangements. Other things will be taken into account in dividing the assets including, for example, current and potential future financial obligations, or earning’s, your ages and the duration of your marriage or civil partnership and your contribution to the well being of the family. The impact of the separation, divorce or dissolution of the civil partnership upon the children of the family will always be the prime concern of the court.

Any work carried out on your behalf in relation to the division of assets will always require both parties to disclose all assets and in fact their complete financial situation. Valuations of appropriate assets will be obtained together with details of all liabilities. Once we have all the appropriate information we can begin negotiating the final division of your assets.

In marital or civil partnership proceedings there maybe circumstances which entitle one party to claim income top up from the other. We will advise you on the merit of whether a claim can be made or opposed and will see you though the process if it goes ahead.

Maintenance can either be substantive, for example £100 per week, or nominal, for example, £1 per annum- the latter being used to keep their partners claim alive. In all cases it must be considered whether or not all claims should be extinguished- this will result in an arrangement known as a “clean break.”

Sometimes it may be appropriate to provide one party with more than the available capital in place of maintenance, to achieve a clean break. If a clean break is achieved then neither party will be entitled to raise any future claims against the other.

One very complex area of law upon which we can provide advice is the most appropriate way in which your pension provision should be considered in the dividing of your assets. We will work with your pensions provider to arrange to receive all the information that will be required for negotiations or by the court. If appropriate, it may be necessary to seek expert advice from a financial advisor.

There is no absolute entitlement to a share or claim against a partners pension but they can be included in the dividing of assets in a number of ways:

  • Offsetting – this is a method by which it is agreed that one party will receive a greater proportion of the realisable (i.e cashable) capital assets and in return the other party will retain his or her pension in its entirety.
  • Attachment – this allows one party to claim a percentage of the other party’s pension entitlement upon their retirement, although this is an unpopular route as the claiming party would have no control over the fund or the retirement age of his or her partner. Also, if the claiming party remarries they would lose any entitlement to the earmarked annuity, which in nearly all cases does not survive the death of the pensioned party. Nevertheless it remains possible to make a claim again the lump sum element, the annual income (annuity) and death in service benefits.
  • Sharing – this involves the sharing of one party’s pension fund with the other. The percentage of the fund is transferred (either within the existing scheme rules or to an alternative scheme) into the pension fund of their partner. Unlike attachment, the benefits will then be under the control of the receiving party.

Child Support – all parents have a legal obligation to financially support their child, usually until either the 19th birthday or the completion of full time under graduate education.

The parent with whom the child resides provides this financial support and the normal type of financial contribution from the then non-resident parent is commonly known as maintenance.

If the resident parent is in receipt of State Benefits (excluding Child Benefit) there is no option but for the Child Maintenance Service (CMS) to become involved. The CMS will send forms to the non-resident parent to complete so that a maintenance assessment can be calculated.

If neither parent is in receipt of Income Support then they can also make arrangements through the CMS if they are unable to come to their own agreement.

Reaching an agreement – there is no exact science to the amount payable in child support by an agreement. The figure is usually achieved by discussion, negotiation and by assessing the monies required to provide for the running of the home and for the welfare of a child or children, whilst considering the financial needs of both parents. We can assist you in the negotiation and/or mediation to reach such an agreement.

This agreement in its finalised form in a formal mediation agreement or within divorce or civil partnership dissolution proceedings can be incorporated into a Court Order. The maintenance level agreed is not written in stone and can be varied upwards or downwards depending on the financial circumstances of the parent if they change over time.

If agreement cannot be achieved, either parent can make an application to the CMS. We can provide you with a best calculation / potential outcome of any assessment.

Howe & Spender Solicitors is regulated by the Solicitors Regulation Authority, No.00173958