Ancillary Relief in UK Law

In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. This is implicit in the very language of paragraph (f): '… the contribution which each has made or is likely … to make to the welfare of the family, including any contribution by looking after the home or caring for the family.'

It follows necessarily from this that each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present case) owes a duty to the court to make full and frank disclosure of all material facts to the other party and the court. The legal basis of that principle, and the justification for it, are to be found in the statutory provisions to which I have referred.

However, in the Family Division there still remains the necessity for some starting point. That starting point, in my judgment, is that costs prima facie follow the event (see Cumming-Bruce L.J. in Singer v. Sharegin (1984) FLR 114 at p. 119) but may be displaced much more easily than, and in circumstances which would not apply, in other Divisions of the High Court.

Important too is the general proposition that, formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement.

The judgment that emerged is a tribute to the judge's exhaustive investigation of a mass of detailed evidence. The quasi-inquisitorial role of the judge in ancillary relief litigation obliges him to investigate issues which he considers relevant to outcome even if not advanced by either party. Equally he is not bound to adopt a conclusion upon which the parties have agreed.

The amount of financial provision will depend on all the circumstances of the case and there is no rule that it should be the minimum amount required to overcome injustice. Second, it will never be appropriate to make an order which gives the claimant more than she or he would have been awarded had all proceedings taken place within this jurisdiction. Third, where possible the order should have the result that provision is made for the reasonable needs of each spouse.

The phrase "family assets" is a convenient short way of expressing an important concept. It refers to those things which are acquired by one or other or both of the parties, with the intention that they should be a continuing provision for them and their children during their joint lives, and used for the benefit of the family as a whole. It is a phrase, for want of a better, used by the Law Commission, and is well understood.