of marriage relationships3 have made fair redistribution of financial assets on divorce a daunting task to judges, while the legal advisers and parties remain largely uncertain of the outcome.
The present research attempts to understand the legal developments concerning ancillary relief over the past ten years in England and Wales, and analyse to what extent they have been successful in achieving a fair outcome for the parties concerned in such applications. Given the fact that a ‘fair outcome’ in a claim proceeding is influenced by the legislative coverage, the court’s approach in interpreting the provisions and the complexity rules and procedures, the review of legal developments shall essentially consider the major changes to the legislation, the major developments in case law as well as the changes to the rules and procedures towards achieving a fair outcome for the parties.
Ancillary relief – the apportioning of financial assets and income of the parties to the marriage– remains one of the major issues to be resolved on divorce. The basic law and judicial considerations for ancillary relief are contained in Part II of the Matrimonial Causes Act (MCA) 1973, amended by the Matrimonial and Family Proceedings Act 1984 imposing a ‘clean break’ obligation on the courts. Statutory improvements have been impacted the provisions, a review of which shall be endeavoured.
The 1973 Act provided courts with the power award maintenance and grant lump sums via division of income, but more significantly to make property adjustment orders, enabling capital division of assets.4 While this by itself was ‘revolutionary reforming measure,’5 as traditionally ancillary relief was limited to only income, the Act made no mention of the pension rights of the spouses, except merely stating it as a ‘benefit’ for consideration while dividing family assets. Considering the fact that during the marriage both parties would have looked to it as a joint fund for their