Ancillary Relief Handbook

by Bird, Roger C.; Bird, R. C.

• ISBN13: 9780853089704
• ISBN10: 0853089701
• Edition: 5th
• Format: Paperback
• Copyright: 2005-07-01
• Publisher: Jordans Pub

Summary

The Ancillary Relief Handbook has established itself as as first resort for thousands of matrimonial lawyers. By combining a clear explanation of the legal principles with straightforward advice on practice and procedure, Roger Bird has produced the essential reference work for the busy family lawyer. This new edition has been thoroughly revised. It takes account of recent case law and provides analysis of all the important developments. There is a new chapter, written in the light of the judgment in McFarlane and Parlour, devoted to the question of the extent to which equality should apply to periodical payments, as opposed to capital. Additionally, there is an examination of the proposed new costs and appeals regime and a consideration of the implications for family lawyers. The extensive text is supplemented by appendices containing key precedents and legislation. Roger Bird formerly sat as a district judge at the Bristol County Court and is the author of a number of best-selling works on various aspects of family law and practice

Table of Contents

Foreword to the First Edition	v
Preface	vii
Table of Cases	xvii
Table of Statutes	xxxi
Table of Statutory Instruments	xxxvii
Table of Conventions	xliii
Table of Abbreviations	xlv
Chapter 1 INTRODUCTION TO ANCILLARY RELIEF	1	(36)
Scope of this chapter	1	(1)
Definitions	1	(1)
The principles governing the exercise of the court's discretion	2	(1)
All the circumstances of the case	3	(1)
First consideration the welfare of children	4	(1)
No one factor more important than others	5	(1)
Financial resources	5	(6)
Standard of living during marriage	11	(1)
Ages of parties and duration of marriage	11	(3)
Disability	14	(1)
Contributions	15	(2)
Conduct	17	(3)
Lost benefits	20	(1)
Agreements	21	(4)
Self-sufficiency	25	(1)
Equality and fairness	25	(6)
Equality and periodical payments	31	(6)
Chapter 2 PERIODICAL PAYMENTS	37	(16)
Introduction	37	(1)
Definitions	37	(1)
Who may apply?	37	(1)
Procedure	38	(1)
General principles	38	(1)
How does the court make its orders?	38	(1)
Should there be an order at all?	38	(1)
Earning capacity/potential	39	(1)
Cohabitation	39	(1)
Conduct	40	(1)
Length of marriage	40	(1)
What should be the amount of the order?	40	(2)
Should the order be limited in duration?	42	(1)
Maintenance pending suit	42	(1)
Form of order	43	(1)
Tax considerations	43	(1)
The clean break	44	(9)
Chapter 3 SECURED PERIODICAL PAYMENTS	53	(4)
Introduction	53	(1)
Statutory provisions	53	(1)
Nature of the order	53	(2)
When will such an order be made?	55	(1)
Variation and amendment	55	(2)
Chapter 4 LUMP SUM ORDERS	57	(12)
Introduction	57	(1)
Statutory provision	57	(1)
Number of lump sums	58	(1)
How are lump sum orders calculated?	59	(1)
Big money cases	60	(2)
Business cases	62	(4)
Tax considerations	66	(3)
Chapter 5 TRANSFER OF PROPERTY ORDERS AND HOUSING NEEDS	69	(10)
Introduction	69	(1)
Statutory provision	69	(1)
Rules	70	(1)
The basis on which orders are made	70	(2)
Types of transfer of property orders	72	(4)
Transfer of tenancy	76	(1)
Tax implications	77	(2)
Chapter 6 SETTLEMENT OF PROPERTY ORDERS AND VARIATION OF SETTLEMENTS	79	(4)
Introduction	79	(1)
Statutory provision	79	(1)
What is a settlement?	80	(1)
Variation of settlement	80	(3)
Chapter 7 ORDERS FOR SALE	83	(4)
Introduction	83	(1)
Order for sale under section 24A of MCA 1973	83	(1)
How is jurisdiction exercised?	84	(1)
Interim orders	84	(1)
Orders under RSC Order 31, rule 1	85	(1)
The Trusts of Land and Appointment of Trustees Act 1996	85	(2)
Chapter 8 AVOIDANCE OF DISPOSITION AND OTHER INJUNCTIONS	87	(10)
Introduction	87	(1)
Applications under MCA 1973, section 37 for an avoidance of disposition order	87	(6)
Applications for avoidance of disposition under the inherent jurisdiction of the court	93	(1)
Freezing injunctions	94	(1)
Search orders	95	(2)
Chapter 9 CONSENT ORDERS	97	(12)
Introduction	97	(1)
The duty of the court	97	(1)
Information required by the court	98	(1)
Exceptions to the general rule	99	(1)
Practice on applying for a consent order	99	(1)
Notes on drafting consent orders	100	(3)
Applications to set aside consent orders	103	(5)
Forms	108	(1)
Chapter 10 PENSIONS	109	(26)
Introduction	109	(1)
Variation of settlement	109	(1)
Pensions as a resource: MCA 1973, sections 25B and 25C	110	(5)
Attachment (formerly earmarking) orders	115	(5)
Pension sharing	120	(10)
Comparison of the various types of remedy	130	(5)
Chapter 11 CHILDREN	135	(12)
Introduction	135	(1)
The Child Support Act 1991	135	(5)
When may applications be made to the court?	140	(2)
Applications to the court	142	(4)
Interim applications	146	(1)
Chapter 12 INSOLVENCY AND RIGHTS OF CREDITORS	147	(8)
Introduction	147	(1)
The Insolvency Act 1986 and sale of the matrimonial home	147	(5)
The rights of third-party creditors	152	(3)
Chapter 13 VARIATION	155	(6)
Introduction	155	(1)
Statutory provisions	155	(3)
The principles on which the court exercises its discretion	158	(2)
Procedure	160	(1)
Forms of order	160	(1)
Chapter 14 MISCELLANEOUS APPLICATIONS	161	(6)
Introduction	161	(1)
Applications under MCA 1973, section 27	161	(2)
Applications under MCA 1973, section 10(2)	163	(1)
Orders for alteration of agreements during lifetimes of parties	164	(3)
Chapter 15 FINANCIAL RELIEF AFTER OVERSEAS DIVORCE	167	(4)
Introduction	167	(1)
Jurisdiction	167	(1)
Applications for leave	168	(1)
Orders which may be made	169	(2)
Chapter 16 PROCEDURE	171	(16)
Introduction	171	(1)
Issue of proceedings	171	(1)
The overriding objective	172	(1)
Issue of application	173	(1)
Service and parties	173	(2)
Filing of evidence	175	(1)
Other documents to be served	176	(1)
The statement of apparent issues	177	(1)
Questionnaires and requests for documents	177	(1)
The first appointment	178	(1)
Expert evidence	179	(1)
The financial dispute resolution hearing	180	(2)
The final hearing	182	(1)
Inspection appointments	183	(1)
Interim orders	184	(1)
Variation application	185	(1)
The protocol	185	(1)
The Practice Direction of 25 May 2000	186	(1)
Chapter 17 COSTS	187	(16)
Introduction	187	(1)
Some general principles of costs	188	(2)
The effect of the Family Proceedings Rules, including the effect on Gilderbank letters	190	(3)
Judicial interpretation of the costs rules	193	(4)
Practice Direction of 28 March 1988	197	(1)
Lump sum orders as to costs	198	(1)
Aspects of funded services	199	(2)
Orders for payments on account of costs	201	(1)
Wasted costs orders	201	(1)
Precedents for orders for costs	201	(2)
Chapter 18 APPEALS	203	(4)
Introduction	203	(1)
From district judge to judge (county court)	203	(1)
From district judge to judge (High Court)	204	(1)
From district judge to judge (Principal Registry)	205	(1)
From circuit judge or High Court judge to Court of Appeal	205	(2)
Chapter 19 ENFORCEMENT	207	(8)
Introduction	207	(1)
Execution	207	(1)
Charging orders	208	(1)
Garnishee order	208	(1)
Attachment of earnings	208	(1)
Judgment summons	209	(1)
Appointment of a receiver	210	(1)
Registration of order in a magistrates' court	210	(1)
The Maintenance Enforcement Act 1991	211	(1)
Execution of documents by nominated person	211	(1)
Sequestration	211	(1)
Committal	212	(1)
Reciprocal enforcement	212	(3)
Chapter 20 THE IMPACT OF THE HUMAN RIGHTS ACT 1998	215	(8)
Introduction	215	(1)
The principal provisions of HRA 1998	215	(3)
Parts of the Convention which may affect ancillary relief	218	(2)
The likely effect of HRA 1998 in practice	220	(3)
Chapter 21 THE PROCEEDS OF CRIME ACT 2002	223	(10)
Introduction	223	(1)
The purpose of POCA 2002	223	(1)
Money laundering	224	(1)
Offences under POCA 2002	224	(1)
Judicial guidance as to the operation of POCA 2002	225	(8)
Chapter 22 FUTURE DEVELOPMENTS	233	(4)
Introduction	233	(1)
The Family Law Act 1996	233	(1)
Reform of MCA 1973, section 25	233	(1)
Enforcement	234	(3)
Chapter 23 A SUMMING UP	237	(6)
Introduction	237	(1)
The primacy of the statute	237	(1)
The importance of finding the facts	237	(1)
No mathematical starting point	237	(1)
Reasonable needs and ability to provide	238	(1)
The importance of housing	238	(1)
No redistribution for its own sake	238	(1)
The yardstick of equality	238	(1)
Self-sufficiency	239	(1)
Pensions not a separate regime	239	(1)
Some practical hints on preparing a case	239	(4)
Appendix A PRECEDENTS	243	(36)
1 Example of request for documents	245	(1)
2 Order for inspection appointment pursuant to FPR 1991, rule 2.62(7)	245	(1)
3 Search order - discovery by order permitting entry of premises and search for documents	246	(1)
4 Ex parte order permitting entry to premises and search for assets and documents	247	(1)
5 Maintenance pending suit order	248	(1)
6 Order for maintenance payments to be paid by standing order	248	(1)
7 Periodical payments order for spouse	249	(1)
8 Order directing cessation of order made in magistrates' court	249	(1)
9 Secured periodical payments order	249	(1)
10 Periodical payments order to child	250	(1)
11 Order to other parent or other person for child	250	(1)
12 Order to include payment of school fees	250	(1)
13 Lump sum orders	251	(1)
14 Order to transfer property to assisted person with direction that it be used as a home for funded person or his dependants	252	(1)
15 Mesher order - house in joint names - party to be allowed to live there until child attains a certain age	252	(1)
16 A more elaborate form of Mesher-type order	253	(1)
17 Mesher-type order with provisions for extended right of occupation and for occupant to pay rent from a specified date	254	(1)
18 Order for transfer of property to applicant and charge imposed in favour of respondent in a fixed sum	254	(1)
19 Alternative order for transfer of property to applicant and charge imposed in favour of respondent in a proportion	255	(1)
20 Suggested form of charge	255	(1)
21 Order for sale and for possession	256	(1)
22 Order varying settlement created by purchase in joint names (both having contributed) to the effect that the trust for sale continues on terms set out - Mesher-type provision with power to substitute property	257	(1)
23 Order for variation of settlement (pensions)	258	(1)
24 Martin-type order - house in joint names - party to be allowed to live there for life	259	(1)
25 Order for transfer on payment and provision for sale in default	260	(1)
26 Order dismissing claims to periodical payments, etc	260	(1)
27 Order for execution of contract or conveyance on behalf of person refusing to do so or who cannot be found	261	(1)
28 Injunction under MCA 1973, section 37 - interim injunction made ex parte (High Court)	261	(1)
29 Order setting aside disposition	262	(1)
30 General form of injunction	263	(1)
31 Examples of agreements and undertakings to be recited in preambles to consent orders	264	(2)
32 Variation of orders	266	(1)
33 Setting aside orders for ancillary relief	267	(1)
34 Undertaking to request commencement of pension on stipulated date and with sufficient benefits to meet order	268	(1)
35 Undertaking not to frustrate earmarking order - personal pension/retirement annuity contract	268	(1)
36 Undertaking as to death benefits (occupational pension scheme)	268	(1)
37 Clean break recital: earmarking order	269	(1)
38 Non-attached deferred lump sum order from pension	269	(1)
39 Attached periodical payments order	269	(1)
40 Attached lump sum order	270	(1)
41 Commutation order	270	(1)
42 Death benefits attachment order under MCA 1973, section 25C (occupational pension scheme)	270	(1)
43 Death benefits attachment order under MCA 1973, section 25C (personal pension/retirement annuity contract)	271	(1)
44 Pension sharing/attachment order	271	(7)
45 Orders for costs	278	(1)
Appendix B LEGISLATION	279	(146)
1 Matrimonial Causes Act 1973, Part II	281	(43)
2 Family Proceedings Rules 1991, SI 1991/1247, rules 2.51A-2.70, 3.1-3.3, 7.1-7.6, 7.16-7.39, Appendix 1, Forms M16, M17, M19-M22, Appendix 1A, Forms A-I	324	(69)
3 Pensions on Divorce etc (Provision of Information) Regulations 2000, SI 2000/1048	393	(12)
4 Pension Sharing (Valuation) Regulations 2000, SI 2000/1052	405	(6)
5 Divorce etc (Pensions) Regulations 2000, SI 2000/1123	411	(5)
6 Practice Direction of 10 March 2000 (Family Proceedings: Court Bundles)	416	(2)
7 President's Direction of 25 May 2000 (Ancillary Relief Procedure) and Pre-Application Protocol	418	(5)
8 President's Direction of 16 March 2001 (Committal Applications and Proceedings in which a Committal Order may be made)	423	(2)
INDEX	425