Ancillary orders are made at the time of or following the grant of a decree of divorce or judicial separation. They are the means by which a court sets out the arrangements which will apply following the divorce or judicial separation and makes proper provision for the spouses and children. The nature and extent of proper provision is assessed by a Court having regard to all the circumstances of the parties and in particular certain factors set out in the governing legislation which in the case of divorce is the Family Law (Divorce) Act 1996 and in the case of judicial separation the Family Law Act 1995.
These factors include:
- The amount and nature of the assets of the parties.
- The amount and nature of the income of the parties.
- The needs of the parties and of their children.
- The length of the marriage.
- The contributions which each party has made to the marriage, for example by working either within or outside the home.
- The standard of living enjoyed by the parties prior to separation.
- The health of the parties.
- Any benefits to which either party may be entitled.
- The conduct of the parties if it would be contrary to justice to ignore such conduct.
- The rights and interests of third parties.
The court decides what is the factual situation in regard to each of these factors and which of the factors are important in the particular case. It then makes such proper provision as justice requires. There is no set rule or formula by which assets are divided; it all depends on what is fair and just in the circumstances of any particular case.
The main types of orders used by the court to make proper provision are the following:
- A Periodical Payments Order – this requires a spouse to pay a certain amount per week or per month in respect of the other spouse and/or any dependant children. Children are considered to be dependant until they reach 23 years of age or finish in fulltime education, whichever is the earlier.
- A Secured Periodical Payments Order – this is the same as a periodical payments order except payment is secured against a fund or a property which can be drawn upon or sold if there is default in payment.
- A Lump Sum Order – This requires a spouse to pay a lump sum or lump sums to the other spouse in respect of himself/herself and/or any dependant children.
- A Property Adjustment Order – This directs a spouse to transfer a property or properties to the other spouse and/or dependant children.
- A Pension Adjustment Order – This requires a spouse to transfer all or sum of a pension to the other spouse. The order can cover not only a pension paid after retirement but also a benefit payable in the event of death prior to retirement.
- A Financial Compensation Order – This requires a spouse to put in place or to maintain in place an insurance policy in favour of the other spouse. This can sometimes be used to ensure that a spouse and/or children are properly provided for in the event of the death of the other spouse.
- A Custody or Access Order – This is an order directing who is to have custody of the children and what arrangements are to be in place in regard to access to them.
- An Order in regard to Succession Rights – Following judicial separation the court can direct that the right of one or both spouses to an automatic share in the estate of the other should be extinguished and can also direct whether a spouse should be allowed to seek provision out of the estate of the other. Following divorce the right of a spouse to an automatic share in the estate of the other is ended but the court can direct whether a spouse can seek provision out of such estate.
It is important to remember that a court uses a combination of the above orders to attempt to achieve a just and fair result for the spouses and the children.
The court also has powers to vary or discharge continuing orders in the light of changed circumstances, for example if a person who has been directed to pay periodic maintenance loses his or her job. Most cases in regard to ancillary relief are dealt with in the Circuit Court but some are heard in the High Court where there are very considerable assets or income, often called “ample resources” cases.