Ancillary Relief

AThere are two aspects to the family home, occupation and ownership. The circumstances will vary depending on the particular circumstances of the case.

The general rule in relation to legal ownership of the family home is that, if jointly owned, both parties are deemed beneficially entitled to it. It is possible for either party as joint owner to apply to court for a sale of the family home and such application will be determined having regard to all the circumstances. It is unlikely that a sale would be made in the case of e.g., a mother residing in a modest house with a very young family and with no other place to live. A sale would be more likely if the spouses had no dependent children and/or were both working and could provide alternative accommodation for themselves.

It also depends on the value of other assets owned by the spouses or either of them. In some cases it may be appropriate for one spouse to buy out the other’s interest in the family home thereby facilitating purchase of a second home. In the context of negotiations on the family home it is important to focus on a solution that will ensure proper/adequate accommodation for both parties.

AProperty is broadly defined for the purpose of Family Law and the Court has power to transfer any kind of asset from one spouse to the other as it deems appropriate in the particular circumstances of the case.

AIt is an unfortunate consequence of separation that there is a diminution in the living standards of a family.

There is a legal obligation on both spouses to maintain the other, although this obligation tends to become focused on the spouse with the higher earning capacity. The court can be asked to order one spouse to make financial provision for the other, either as an ancillary order to a decree for Judicial Separation or divorce, or in separate proceedings, as a periodical payment and/or a lump sum.

The level of maintenance depends on the circumstances of both the husband and wife and the court takes into account.

• the wife’s reasonable needs for herself and the children.
• the true income of the husband.
• the husband’s reasonable needs and
• the true income of the wife or the ability of the wife to generate an income/ greater income.

Taking all these matters into account the court tries to assess a fair level of maintenance.

AA decision also must be made on the method of assessment for income tax. Spouses may continue to opt for joint assessment or may choose single assessment for tax. This can be discussed in greater detail at a later stage.

AIn some cases the Court can order a spouse to make a lump sum payment to the other spouse, either in addition to or in substitution for periodical maintenance. The quantum of the lump sum will depend on the circumstances of the case and the wealth of the spouses.