Is the English Law on Ancillary Relief Defective - Essay Example

14 December 2006 Is the English Law on Ancillary Relief Defective Divorce is often the cause of inconvenience toa couple. A break-up from a bond of marriage is already disappointing to the spouses, if not wounding. And a necessary consequence of divorce concerns how the property of the spouses should be divided and distributed to each of them. It gives tension and problems which always result in an injudicious settlement often leading to injustice to either of the spouses. The outcome of divorce cases should not only be reasonable to both parties, but also it should be generally fair to everyone. In cases of divorce, nullity of marriage, judicial separation and presumption of death and dissolution of marriage in England and Wales, a party to the dissolved marriage may claim for pecuniary award for the determination of issues regarding consequential monetary matter. This court proceeding is formally called Ancillary Relief. It is that part of the course of action which determines the financial concern as between the parties to the marriage. In reality, once the husband and wife decide to annul their marriage, they usually see eye to eye and make up their minds to go through the process of divorce, taking into consideration the fact that they have earnestly thought about it over and over, including its consequences. Eventually, after the couple has finally decided to accept that their marriage is really over, they commence the discussion on issues regarding the children (if there be any) and the separation of their property. More often than not, the couple sorts out by agreement these aforesaid issues. Generally, for cases of divorce between spouses, where the applicant is a resident or domiciled in England, the English Courts have the jurisdiction to conclude and determine whether the granting of a decree of divorce is warranted under given circumstances. The process of ancillary relief is included in this procedure wherein the English Courts are given a wide range of discretion to decide the amount of relief to be awarded for the benefit of one of the spouses and/or their children. Considering the fact that jurisdiction is vested on the English Courts if the applicant is a resident or is domiciled in this country, it follows then that a foreign spouse who is domiciled and resident abroad may be granted a financial relief. But this is not to say that the rule on this situation is limitless. There are some cases where the courts have declined to issue orders of relief to those foreign spouses on the ground that the courts believed that it would be utterly ineffective to do so. One relevant case is the early case of Tallack v. Tallack [1927], where the court found that one respondent had no substantive link or effective connection with England, and the courts of the country where he is domiciled and resident would have rejected the execution of the English order, the English court refused to make an order of ancillary relief. The all-embracing and extensive scope of use by the English courts' legally sanctioned authority to decide between a variety of outcomes in determining the financial award for ancillary relief has the underlying moral basis of trying to preserve for each party their financial status as it would have been, had the marriage continued to subsist. [Sherwood v. Sherwood (1928)] On the other hand, ancillary relief of the English law is often criticized and condemned for being flawed by some jurists overseas. They claim that "it is inappropriate to the modern concept of matrimony as a partnership since it is 'a law of separation of assets' and that it is illogical in a marriage partnership in which in theory there should be 'community of property' unless there are special reasons for contracting out of such a position." In the landmark case of White v. White (2000), Lord Nicholls made a clear-cut statement that "(t)he statutory provisions lend no support to the idea that a claimant's financial needs, even interpreted generously and called reasonable requirements, are to be regarded as determinative." He explained that the statutory scheme comprises assessment of other factors as well, such as the existing resources and the spouses' contribution. In this case, the House of Lords has made an evident endorsement to equality of division as regards ancillary relief. The raison d'tre of the court in determining this present case is the relativity of the word "fairness." For one thing may be reasonably acceptable to one while the same may not be for the others. As this well-penned decision says, "fairness, like beauty, lies in the eye of the beholder." This diverse case of White only depicts how relatively flexible Section 25 of the Matrimonial Act of 1973 is. The flexibility and sensitivity of the English Law of ancillary relief appropriately gives the judges fair opportunity to deal rather fittingly with various individual cases, taking into consideration variable situation and facts surrounding the circumstances of each case, in dividing the property. Although the intricacy of the undertaking is obvious, discretion and flexibility in applying the procedures in ancillary relief is unsurpassed. It puts off the severe restriction of rigid or formulaic rules which could inopportunely result in piling up and clogging up of cases in courts, to address alleged unfairness of the outcome of the application for relief. By this wide range of discretion given to courts, many applicants complain that they are given a lesser amount of guidance as to its probable outcome. They often feel that they are left in the dark as to the path where their action is leading. This may be true in view of the ruling of the court in the case of Gojkovic v. Gojkovic (1990), wherein it was made clear that the previous cases of ancillary relief provide mere guidelines, but not precedents, for the obvious reason that every case has to be decided upon its particular facts. Critics argue that the unpredictability of outcome in ancillary relief cases transgresses the fundamental principles of justice, which require broad consistency of outcome in decisions. However, this overly flexible approach in deciding ancillary relief cases does not intend to affect some consistency in any given case. Although the previous cases decided in the past by the English courts are not considered precedents in exclusively deciding the relief sought in a latter case, these cases are readily available to set as guidelines in the determination of the granting of the relief. Certainly, although the ancillary relief in the English law is so flexible, it could still attain consistency by the fixing of guidelines and theoretical objectives. Some of the guidelines in determining the intelligent employment of the courts' discretion include, but are not limited to the following: the compensation of the parties for their contributions to the marriage, the equalization of the economic position of each party, the equalization of the economic effect of the marriage and the meeting of the future needs of the parties. (Herring 70) M.E. Rodgers, a Senior Lecturer in law in Nottingham Trent University, stated that "to ensure a level of consistency with civil matters generally, the Ancillary Relief Pilot scheme has now been applied on a national scale." (Student 138) This scheme may probably be the best solution in balancing the flexible judicial discretion afforded to the judges so as not to affect the uniformity and consistency of the outcome. Here, the parties are then required to conform to the methods outlined in the "Pre-Action Protocol". This protocol deals with matters and issues concerning discovery and the character of the accurate evidence necessary to the ancillary procedure. The challenge now in the English marriage law, especially on ancillary relief sought by the applicant spouse, is to manage and deal with the diversity of each individual case and to allow flexibility where possible, but at the same time, to guarantee that the spouses are neither exploited nor taken advantage of. Taking into account the rapid, complex and increasing disparity among cases of divorce in the globe, the selection of the English forum has created the effect of balancing flexibility to promote and achieve orderly administration of justice. In the community property jurisdiction which is typically extant in the rest of the world, spouses have, in point of fact, agreed for the joint ownership of matrimonial assets upon marriage. This rule, however, may run counter to the essential fairness and equality character of justice when it comes to distribution or apportionment of assets in cases of dissolution of marriage. The ancillary relief in the English forum has obliterated this unfairness and grievance by proceeding to its fundamental judicial discretion depending on the circumstances of each case. This may be best illustrated in cases where a person intended to marry his or her spouse because of financial consideration. Suppose a wife entered into a relationship eventually leading to marriage with a husband who is known to be wealthy, with the internal motive of sharing with the latter's material resources and not by love, is there justice in that when on the verge of a break up, a wife gets half of the possessions which the husband take into the marriage The selection of the English forum then becomes the basis for getting the most favoured and fair resolution of ancillary relief, owing to the fact that the English courts usually proceeds on the foundation of terms which are actually reasonably necessary to distribute the assets fairly. It allows considerable flexibility to meet the requirements of justice and convenience for all the parties. But this does not mean that the English law lacks consistency as it may produce varying outcomes. The court is authorized to disengage itself from the rigidity of rules especially so if the core objective of fairness and justice is obtained. While some critics, who are guarded by an inflexible code of presumed joint matrimonial ownership between spouses, disapprove of the broad discretion granted to the English courts, the consistent achievement of deciding cases as it sees fit is the primary consideration in the flexibility of the English law. It draws away inequality and prejudice which may possibly result in the joint ownership of conjugal assets. [Burton 208] As stated a while ago, the recent changes in the conduct of ancillary relief which are fundamental in the implementation of a Pilot Scheme is just one way of making the English law consistent as to the outcomes produced. Although, in this kind of scheme, full proceedings may never be used since settlement or compromise agreement between the spouses may end the litigation. The underlying principle in this kind of procedure is often understood by the spouses in order to avert expensive litigation. Considering that disputed ancillary relief proceedings are expensive and exhausting for the parties, the aim of utilizing this scheme in most cases is not to continue with the litigation but to enter into settlement. This settlement will then result to a consent order issued by the court, whereby the court under the truncated procedure will just approve and grant the compromise previously agreed by the parties. In reality, even though it may be seen as a defective law in the eyes of an ordinary and lay person, the English law on ancillary relief is not necessarily incoherent with the previously mandated orders. In view of the fact that courts are not bound by precedents in ancillary relief, many jurists denounce the English law as defective and unfair. They take the flexibility of the law as something that restricts or limits the reliability and stability of the rules. But the English law should be understood in the manner where both justice and equality are well deliberated. Since the main objective and purpose of each rule of law, whichever country you are in, is to oversee that justice and fairness are well served in the most convenient manner, administration of justice may properly attained by relaxing certain rules of law, especially if the rigidity would result in a defeat of equity and substantial justice. Verily, the considerable vastness of flexibility in the English law of ancillary relief does not run counter to the required consistency with the conceptual approach in the matter. Works Cited Gojkovic v. Gojkovic [1990] 1 FLR 140 Herring, Jonathan. Family Law: Issues, Debates, Policy. UK: Willan Publication, 2001. Sherwood v. Sherwood [1928] P.125 Student Law Review: 2000 Yearbook. UK: Routledge Cavendish, 2001. Tallack v. Tallack [1927] P.211 White v. White (2000) 3 WLR 1571 Read More