Before making the application, the applicant (and indeed the respondent) should be aware of the pre-application protocol, which essentially obliges both parties to make a reasonable effort to settle the matter by agreement before an application is made, including voluntarily disclosing details of their means to the other party. Failure to comply with the protocol could have consequences in any subsequent application, such as the court ordering the non-complying party to pay costs.
Application for ancillary relief
The procedure on an application for ancillary relief is detailed but is essentially quite straightforward as Figure 4.1 makes clear.
To go into a little more detail, the applicant commences the procedure by filing a Form A – application for ancillary relief with the court. An example Form A can be found in Appendix 1. As will be seen, it is a fairly simple document; the only slight complication being whether or not you were the petitioner in the divorce. If you were, then you should have included financial/ property claims in the prayer of your petition, in which case the Form A signifies your intention to proceed with those claims. If you were the respondent in the divorce, then the Form A is your original application for a financial/property settlement. Otherwise, you just fill in the case details, the respondent’s address, tick all six boxes for what you want to claim, insert the address of any property involved (that is, the former matrimonial home ) in the box, sign and date the form. You then file the form with the court, together with a copy for the respondent and the court fee, which is currently £210.
First Appointment date, not less than 12 weeks and not more than 16 weeks after the date the Form A is filed. Secondly, the court will set a date by when each party must file and serve a detailed financial statement (Form E – see below), which will be not less than 35 days before the First Appointment. Thirdly, the court will set a date (at least 14 days before the First Appointment), by when each party must file and serve other required documents, which I will detail below. The timetable will be written into a notice of a First Appointment, which the court will send to both parties, together with the sealed Form A.
When the applicant receives the papers back from the court, they should also serve copies upon the respondent to ensure that they have received them. In addition, copies should be served on any mortgagee of any property involved (that is, the bank or building society to whom the former matrimonial home is mortgaged), the landlord if the property is rented, and the other party’s pension provider if a pension order is being sought and their details are known. Even if a pension sharing order is not being sought, if either party has a pension then they must, within seven days of receiving notification of the date of the First Appointment, apply to their pension provider for information regarding the pension, including a cash equivalent transfer valuation (CETV ) of the pension (if they have not already got one that is dated not earlier than 12 months prior to the date of the First Appointment), and details of any charges that the provider would make to implement a pension sharing order. The provider must supply this information within six weeks of receiving the request. The party requesting the information must then send it to the other party, within seven days of receipt. (Note that if it is decided that a pension attachment or pension sharing order is appropriate then additional information may be required about
the pension arrangement, in which case a pension enquiry form (Form P, available on the Courts Service website) may be sent to the pension provider. The court may order this to be done.)
The rest of the ancillary relief procedure is detailed below but to finish this summary: the parties must comply with the timetable directed by the court, and then both attend the First Appointment, the purpose of which is to define the issues and decide how the matter is to proceed. The next stage in the procedure is usually a Financial Dispute Resolution appointment (FDR), at which the parties should use their best endeavours to settle the matter by agreement, with the help of the court. Only if they cannot reach agreement will the court fix a date for a final, contested hearing.
Form E – Financial statement
Right, take a deep breath, get yourself a cup of tea and make yourself comfortable. Form E can be a daunting document to complete. However, it is mostly self-explanatory, so the following does not explain every section in detail.
Before you begin, you should gather together all of the information and documentation that you will need to complete the form. In particular, copies of the following documents (and, generally, no others) must be attached to the form:
• Any valuation obtained in the last six months of the matrimonial home or any other land or property, plus the latest mortgage statement, confirming the amount outstanding.
• Bank and building society statements for the last 12 months, in respect of any account in which you have had an interest during that period.
• The latest statement or dividend counterfoil relating to any investments held by you, such as shares.
• Surrender valuations for any life (endowment ) policies that have a surrender value – these can be obtained from the insurance companies.
• The last two years’ accounts for any business in which you have an interest and any document that is available to confirm the current value of that business, such as a letter from an accountant or a formal valuation if that has been obtained.
• As mentioned above, a cash equivalent transfer valuation (CETV ) in the last 12 months for each pension arrangement, or a letter of request asking for that valuation.
• Your last three payslips and most recent P60, in respect of each employment that you have.
• Your last form P11D, if you have been issued with one.
• If you are self-employed, a copy of your last tax assessment or, if that is not available, a letter from your accountant confirming your tax liability. Further, if your net income from the last financial year and the estimated income for the next 12 months is significantly different, a copy of the management accounts for the period since your last accounts.
As mentioned above, the form is not explained here in detail but you should note the following:
1 If possible, you must fill in all of the form and attach all of the essential documents mentioned above (see also the schedule at the back of the form), as failure to do so could result in
delay and additional expense. If you are not able to obtain any of the documents within the time limit set by the court, then tick the ‘to follow’ box on the schedule and forward copies of those documents to the court and the other party as soon as they are to hand.
2 Section 1.13 – If there is no child support assessment and child maintenance has not been agreed, the estimate should be based upon the formula used by the Child Support Agency: normally 15% of the non-residential parent’s net weekly income for one child, 20% for two children and 25% for three or more children. For more details, see Chapter 3. If you do not know the non-residential parent’s income, then state this.
3 Section 2.1 – If the matrimonial home is owned jointly, then the value of your interest will be one half of the equity (i.e. the value less the amount outstanding under the mortgage and costs of sale).
4 Section 2.5 – As mentioned above, if the policy has a surrender value, then you will need to request this from the insurance company, if you do not have it already.
5 Section 2.16 – Again, as mentioned above, you will need to obtain a CETV from your pension provider. You may wish to send a copy of this page to your pension provider and ask them to complete it. If you have more than one pension, then you should complete a separate page for each pension.
6 Sections 2.15 to 2.19 – You must ensure that you give details of your income for all years requested.
7 Section 2.20 and 2.21 – Just transpose the figures from the relevant sections of the statement and complete the totals.
8 Section 3.1 – Give details of all of your regular outgoings, including mortgage repayments, council tax, insurances, gas, electricity and telephone bills, food, clothing, petrol, and so on.
9 Section 3.2 – Typical capital needs include housing (i.e. how much you would need to buy a suitable house for yourself), furniture required for your new home and the cost of a new car.
10 Section 4.4 – As stated in the notes, conduct will only affect the financial/property settlement if it is exceptional. For example, adultery is not exceptional. Only give details of conduct if it is exceptional – in most cases, conduct will not be an issue that will affect the financial/property settlement.
11 Section 5.1 – You may not be able to specify what kind of orders you will be asking the court to make, especially if you do not yet have details of your spouse’s means. If this is the case, then just state ‘I am not yet able to specify what order or orders I want the court to make’. If you are certain that you know what orders you want the court to make (for example, equal division of the assets and a clean break), then set out what you want here.
12 Sections 5.2 and 5.3 – You will not need to complete these sections, as they are not relevant to you.
Once you have completed the Form E you will need to attach the
essential documents and have it sworn. This can be done either
at the divorce court or in front of a solicitor (not belonging to the
firm acting for the other party). The court office will be open from 10am to 4pm Mondays to Fridays, and they will not charge a fee for this service. If you take the form to a solicitor, you will be charged a fee of £5.
Once the Form E has been sworn, you should file the original (with attached documents) with the court. You will also need to serve a copy upon the other party or their solicitors. The forms are usually exchanged simultaneously, so get in touch with the other party or their solicitor, inform them that your Form E is ready for exchange and, if theirs is also ready, each party will agree to send a copy of their form to the other in the post that day. Make sure that you keep a copy of your form for yourself.