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   Ancillary relief proceedings
  Ancillary Relief Proceedings
  Introduction   Financial dispute resolution
  First appointment   Open offers to settle
  Final hearing   Professional advice
    

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Introduction
The new rules introduced from the 5 June 2000 mean that procedures for a couple on divorce, judicial separation or nullity of marriage making an application for ancillary relief should have fewer delays for settlement and lower costs. Called the Family Proceedings (Amendment No. 2) Rules 1999 they will also give the court greater control over the conduct and proceedings.

The procedure to resolve matters of money or property do not have to occur at the same time as the divorce petition, judicial separation or nullity and will often be resolved after granting of the decree or decree absolute in the case of divorce. The division of the assets or payment of maintenance can be achieved by applying for a financial order. Different orders can be applied to the matrimonial home by the court depending on the circumstances of the parties.

The new rules as shown by the step-by-step guide made important changes to the Family Proceedings Rules 1991 and now will involve three stages starting with the first appointment, followed by the financial dispute resolution (FDR) appointment and if no agreement is reached between the parties the final hearing. At any stage of the proceedings either party can make an offer to settle all or part of the matrimonial assets, however it will be important for any party to take professional advice from a solicitor before making or accepting any offer.


First appointment [step-by-step guide]
To apply for a financial order and secure a first appointment with a judge the applicant must complete Form A, this being the notice of application to the court where the divorce, judicial separation or nullity of marriage took place together with Form H estimating the applicants costs as this will help the judge in making any cost orders.

The court will then notify the parties of the first appointment that must be between 12 and 16 weeks after the submission date of Form A, allowing time to serve and receive copies from the other party. After receiving notification of the first appointment the party with the pension rights must within 7 days:

Request from the provider of each pension arrangement a valuation of the members pension rights;
   
A summary of the retirement benefits included in the valuation;
   
When a pension sharing order creates a pension credit, whether an internal transfer is allowed;
   
Where dual membership is not permitted, the requirements for an external transfer of the pension credit to another pension arrangement.

A financial statement on Form E must be served on the other party and to the court no later than 35 days before the first appointment. Form E must contain information about the members pension rights including the state earnings related pension scheme (SERPS) but not the state basic pension.

The pension arrangement information will include details of the scheme provider, whether it is an occupational pension scheme such as a final salary pension or a personal pension, show the cash equivalent transfer value (CETV), any death in service benefits or lump sum death benefit after normal pension age (NPA), the projected pension income and maximum commutation to a tax free lump sum, the earliest retirement age, the spouses pension rights and dependents pension rights on death of the scheme member before and after retirement.

At the first appointment the judge will review the case and may require further information in the form of expert evidence for a valuation of complex pension arrangements such as an employers final salary pension or public service scheme or if the parties agree, to make a final order for ancillary relief. Once the court has given its direction the parties must supply the information required by the court.

If there is no agreement the case will progress to a financial dispute resolution appointment. In some cases the judge may adjourn the first appointment to allow the parties to participate in mediation. This involves a person not connected with the case to help the parties to reach an agreement and this will take place away from the court.


Financial dispute resolution [step-by-step guide]
The appointment for financial dispute resolution is an important part of the legal procedure for divorce and usually includes both husband and wife unless stated otherwise by the court. No later than 7 days before the FDR appointment the applicant for the financial order must file at the court details of all offers made to or received from the other party.

Rule 2.61E of the Family Proceedings Rules 1991 states that the FDR appointment will allow the parties to discuss and negotiate a final settlement of the matrimonial assets. This meeting should reduce the conflict around disputes over assets as each party must be open and without reserve in order to reach a settlement. As such, any evidence said or admitted during financial dispute resolution is not admissible as evidence at a future date.

The courts will expect the parties to make offers and the recipients to give them due consideration. It may be at the FDR appointment that such matters regarding the valuation of a members pension rights come to the attention of the judge, if not considered at the first meeting, at which point if there is no agreement between the parties as to the pensions expert to be appointed, the court will use its powers under part 35 of the Civil Procedure Rules 1998 instructing that evidence be given by one expert only.


Final hearing [step-by-step guide]
If during the application for a financial order and after the financial dispute resolution appointment the couple on divorce, judicial separation or nullity of marriage cannot come to an agreement over the matrimonial assets for ancillary relief, the judge will set a date for a final hearing.

At the final hearing a judge, that is not the same judge from the FDR appointment, will review the case carefully including any expert evidence where a valuation of complex pensions such as a final salary pension or public service scheme was agreed or required to be submitted, during the FDR or first appointment.

For divorce and nullity the final order cannot be made before granting of the decree nisi and the order cannot come into force until the granting of the decree absolute. The court at this stage can make the order against the matrimonial assets, or in the case of a members pension rights grant an earmarking order or pension sharing order against the retirement benefits of the parties where appropriate.


Professional advice
For a couple on divorce where there are significant assets involved such as the matrimonial home, investments or pension arrangements or where there are requirements for maintenance claims it is important to seek professional advice. Where a spouse has applied for a financial order and is in the process for first appointment, FDR appointment or final hearing, legal advice from a family lawyer should be taken before making or receiving an offer to settle in respect of the other party.

Although the basic rules are provided in the Matrimonial Causes Act 1973 (MCA 73) as to the matters to consider for ancillary relief, each case is different. The decisions of the court will be influenced by judgments reached on landmark cases, such as White v White (2000) but most importantly satisfy the requirements of both parties fairly when dividing the assets.

The layperson will typically have limited experience and knowledge of previous divorce cases whereas professional legal advice from a solicitor will provide expert knowledge of the decisions of the courts and how they have reached these decisions. Where the assets include members pension rights, the solicitor as an exempt professional firm may require additional expert evidence. This is particularly important for an occupational pension scheme such as a final salary pension where the providers CETV Method does not reflect the fair value for retirement benefits. Therefore a suitably adjusted CETV will be required reflecting the circumstances and specific needs of the parties.

In this case a pensions consultant that is qualified as a pensions expert will be able to value the pension arrangements. In order to keep the costs down to a minimum for both parties it would be appropriate if both parties came to agreement to use a single pensions expert when required by the court to provide expert evidence for such valuation.

Where the court issues a pension sharing order that results in either an internal or external transfer of a money purchase scheme, the spouse may require further advice. If nearing retirement the spouse can use the pension fund to buy an annuity and has the option to use an open market option to search for the highest pension annuity, adding all the features necessary such as escalation, frequency of payment or a new survivors income. Once you have purchased an annuity it cannot be changed, so learn more about annuities, compare annuity rates and before making a decision at retirement, secure a personalised annuity quote offering guaranteed rates.


Open offers to settle [step-by-step guide]
It is accepted that arbitration is less expensive than the court process and therefore in the vast majority of divorce cases the parties will settle at some stage during the proceedings for ancillary relief before reaching the final hearing. No offer to settle which is not an open offer to settle shall be admissible at any stage of the proceedings.

During divorce procedures both parties will be able to make 'open offers' for settlement. The court will be aware of the offers made and this may influence the decision about the percentage in a final hearing. It is essential to have professional advice from a family lawyer when structuring an open offer. The offer should make clear the following:

The specific percentage to be paid by one party to another, this being the offer to settle the dispute;
   
All details of the financial matters considered in arriving at that percentage, including pension arrangements;
   
The offer should give a time limit to reply, after which time the offer would expire and will no longer be available for acceptance.

The general rule in ancillary relief proceedings is the court will not make an order requiring one party to pay the costs of another party. The court may make such an order at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (whether before or during them). The Family Proceedings Rule 2.71 considers the factors the court must take into account when making an order for costs, see the step-by-step guide for more information.

A correctly judged offer could result in an early resolution of the financial matters and save the party a significant amount of money. Where there are complex pension arrangements it is also important to know any adjusted CETV position before making or receiving an open offer as this will certainly influence the final percentage.

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