WOOLF REFORMS

Ancillary relief, like most other court actions, has a focus and timing that it did not have before, and it is now dealt with in a reasonable time in a more structured manner. The aim in most cases is not to litigate, but to settle. In making a financial order ancillary relief is a final resort. Any settlements prior to the application can result in a consent order agreed to between the parties and approved by the court.

Pre-application protocol

In his reforms Lord Woolf created a number of pre-application protocols. The idea behind all the litigation, that is any legal work items that go to court, is that as far as possible the parties should settle before making any application to court.

The protocol for ancillary relief applications is aimed to result in full disclosure and negotiation taking place at an early stage. The court will then decide that the pre-application protocol is the normal and reasonable approach that should be undertaken before any application to court is made.

If proceedings are started before the protocol has been complied with the court can make a decision, particularly concerning costs and the unreasonableness of the parties.

The protocol is designed to cover all the claims for ancillary relief and this would cover all applications for periodical payments, or a substantial lump sum and property adjustment order.

Under the Woolf reforms ancillary relief now has a court timetable and a court managed process. What this means is that when the application is made there are strict procedures and timetables laid down so that neither party can drag on the negotiations unnecessarily. Therefore there might be advantages in arranging disclosure before the proceedings have commenced, but it should also be borne in mind by solicitors that excessive disclosure in negotiations might risk running up the costs to the detriment of either party.

It is also suggested that the parties and solicitors should consider whether mediation is necessary, as an alternative to solicitor intervention or court based litigation.

Making an application for ancillary relief to the court should not be regarded as a hostile step or as a last resort: it should merely be thought of as the means of starting the court timetable, of controlling disclosure and as an endeavour to avoid a costly hearing. However ancillary relief proceedings cannot be started before the decree nisi and cannot take effect until the decree absolute.

All the ancillary relief forms should be included in the prayer, even if they are inappropriate at the time. None should be omitted. This will allow the application to be made later.