Importance Of Ancillary Relief

Before considering the main issue of ancillary relief, we need to first understand the meaning of a divorce. A marriage can be terminated by divorce and this will establish a new relationship between the parties, including the duties, obligations, support responsibilities towards each other and any children in the family.

In order for the petitioner to get divorce, he/she needs to prove the marriage has “broke down irretrievably” and it must proven by one of the following factors: Respondent had committed adultery; It would be unreasonable for the petitioner to live with the respondent for their behaviour; Desertion; They have been lived apart for continuously 2 years with consent or 5 years without consent .

After the granting of a divorce by the courts, the next question which arises is named ancillary relief. This covers how the assets should be divided between the parties. It factors in all financial matter raised by the divorce and as now they have decided to live apart, all the assets that they have shared needs to be divided fairly.

However, we need to start with the basic question of whether marriage is a contract or a status. If marriage is a contract, than should the parties be able to convert the terms relating to entry, exit, and the rights and responsibilities to which it give rise? On the other hand, if marriage is not a contract, shouldn’t it be forever and even when the party divorce, the life-long support should last as promised when they entered into the marriage.

In Bellinger v Bellinger, Lord Thorpe described marriage as a contract, where the parties elect but is regulated by the state, both in formation and in its termination by divorce, because it affects the status upon which, depend a variety of enti...

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...bligation towards their children , it may be unfair if the parties’ assets are to be decided only according to the pre-nuptial agreement . The Law commission also states that the court will have to access; fairness, financial needs of both the parties, entitlement to compensation, as it would be unfair to hold the parties to the agreement instead of making an order in different terms . The “Real need” of the parties will also have to be taken into account besides deciding whether the agreement is fair. Lord Philips identified it as: “Compensation of long-term financial consequences generated by the devotion of one partner to the family at home” . When the marriage comes to an end and both parties decided to live on their separate ways, if would be unfair to hold their agreement if one partner left in a predicament of real need and another party enjoys a sufficiency.