By Ravi Nanga
Last week we examined the issue of divorce.
This week we will examine the second aspect of a divorce, namely the ancillary relief.
As the name suggests, this is ancillary to a divorce and involves the question of custody and control of the children of the family, maintenance for both the spouse and the children as well as property settlement, which deals with the division of the assets of the family.
As we saw last week, in dealing with a divorce, the court is concerned about what is in the best interest of the child, and the welfare of the child is of paramount importance. That principle is also applicable when determining the question of ancillary relief.
Upon filing for a divorce, it is possible to request interim maintenance, where, pending the hearing and determination of the divorce and ancillary relief, a spouse can apply to the court for financial support. The court will take a preliminary look at the respective financial positions of the parties and based on that, make an interim order for maintenance. It should be noted that a court is not bound to only take the current level of earnings of a party into account, but can look at the earning potential of a person.
So that if a person is under-employed and can get a better paying job, a court can consider the earning potential of a person when making an interim order.
Further, the court will also be concerned as to what will happen with the children of the family and whether proper arrangements are put in place in order to ensure the least amount of disruption is caused to the children.
The court will have to decide who gets custody of the children and who has care and control. Custody refers to the person who will be in charge of the children and who will be entitled to make important decisions on behalf of the children.
It is possible to have joint custody, where both parents share custody and will have to confer with each other when making these important decisions. You can also have sole custody, where one parent gets custody, so that there will be no need to confer with the other parent. Care and control in simple terms mean who has the day to day control of the children, that is, who does the children normally live with. It is possible to have shared care and control, where the children spend equal amounts of time with both parents, or where the children live predominantly with one parent and visits with the other parent. The type of order that is made will depend on the circumstances of each case.
Ancillary relief also includes final maintenance, where the court will decide on the level of maintenance after considering the matter in full and looking at all the evidence. The principle that the court applies is that the parties are expected to maintain their same life style as before the divorce, as far as possible. The court will take into account the financial status of both parties, how expenses were dealt with during the marriage and what are the expenses following the divorce.
The parties are expected to give evidence of their full financial position. In the event a person refuses to give such evidence or does not disclose their full financial position, it is possible to call persons from financial institutions as well as employers to give evidence of the financial status of a party.
Once the court has all the evidence before it, the court will proceed to make an order that is fair and just in all the circumstances.
Although this is referred to as a final order, in the event financial circumstances change materially, either party can apply to the court in order to vary the order that was made. For example, if one party receives a promotion and a large increase in salary, the other party can seek an increase in maintenance. On the opposite side, if a party loses their source of income, they can apply to the court to reduce the level of maintenance.
The court also considers all the other assets of the family and attempts to distribute these assets in such a way that the parties can maintain their life style. In deciding how to divide assets, the court will look at the parties’ respective contributions, and use that as a basis to divide up the assets. Contribution is not limited to financial contribution and includes contribution in kind, for example, where a house wife stays at home to take care of the home and the family while the husband goes out to work and earn a salary.
In the event there is a divorce, the court will seek to determine what percentage of the assets should go to the house wife on the basis the house wife stayed at home and allowed the husband to go out and earn a salary. Again, the parties are required to provide a full picture of their assets, including cash, property, vehicles and other valuable assets. The court will normally assess the respective interests in terms of a percentage. When dealing with real estate, normally, one party can buy out the other party’s interest, however, where that is not possible, the property will be sold and the proceeds of sale will be divided up in accordance with the respective shares as declared by the court.
This is a very basic look into the issue of ancillary relief. The issue of ancillary relief can be a complicated issue, and may involve many issues that are far too wide to look at comprehensively in this article.
The courts, bearing in mind that the welfare of the child is of paramount importance and the need to maintain the parties’ respective life styles following a divorce, have laid down and apply many principles in order to do justice between the parties when dealing with the issue of ancillary relief.
Ravi Nanga is an attorney-at-law
(Please note that this article is intended only to provide general information on the topic being addressed and should not be taken as providing legal advice. In order to be properly advised it will be necessary for an attorney to examine the relevant documents and obtain the necessary instructions before properly advising as to rights and obligations.)