Ancillary Relief- The Prayer
Upon issuing an Application for Divorce and dissolution of marriage, it is not only important to achieve legal separation, but also financial separation. Financial separation will permit a clean break financially between the parties and sever any and all financial ties that arose during the marriage. Ancillary relief permits the court to decide on the division of assets, and usually prohibits the individuals from deciding on the division of assets. Ancillary relief is common during divorce proceedings which involve a variety of assets and finances, and where the parties to the proceedings are not amicable for the purposes of negotiations. Ancillary relief provides for financial remedies of the petitioner incidental to the divorce.
The ‘Ancillary Relief Prayer’ or ‘The Prayer’ is a standard section at the end of the divorce petition. It usually begins with the phrase ‘the petitioner therefore prays.’ After this phrase, a list of requests are usually set out which will include dissolution of marriage, and costs of the divorce proceedings will be clarified and who is responsible for same. It will also list the financial orders that the court will have authority to make and decide on.
It is not the case that the respondent is agreeing to pay all the financial orders set out in the Prayer. The Prayer simply provides the petitioner with a degree of protection for the future as no part is aware of yet the financial details of the marriage.
Starting the Process
Ancillary relief commences only after a divorce petition is lodged. The divorce (decree absolute) will not be finalised until the ancillary relief process has concluded and made a rule of the court. It is evidenced before the court by way of an Affidavit. Both the County and High Court can deal with ancillary relief proceedings, and it usually depends on the court in which the divorce was issued.
The Affidavit of the Petitioner or lodging party will outline the financial history and disclose any assets or liabilities attributed to each party.
Factors the court considers
The moral purpose of ancillary relief is to ensure that finances of the marriage are dealt with fairly and appropriately. The court considers welfare of children, future financial resources, standard of living during the marriage, age of each party and length of marriage, any disabilities, contributions, and the conduct of the parties such as unreasonable behaviour.
Based on these factors, the court decides how to split the matrimonial assets. Usually, the same standard of living enjoyed during the marriage is not possible to maintain upon dividing the assets.
Types of Orders the Court can make under The Prayer
The court has a wide discretion on orders it can grant under the Prayer.
Maintenance pending suit- This is an interim order and requires one spouse to make regular payments to the other.
Maintenance between spouses- This order requires one spouse to provide payments to the other either on an ongoing basis or for a set period. It starts when the divorce has concluded and ends when the party receiving payment dies or gets remarried.
Child support maintenance- The court can order one spouse to make payments for the child.
Payment of lump sums- This order requires the paying spouse to pay a lump sum for the benefit of the spouse or the child.
Property Adjustment Order- This order permits the court to grant an order in any owned property or property that the parties have a financial interest in. It grants the court authority to sell the property, transfer, or settle on trust for a party or child.