Understanding the Law
April 29, 2005
Divorce – Part 3

• Q: Can I get a divorce before ancillary matters are completed?

• A: Unless the judge states that the decree absolute is not to be granted until after ancillary matters are completed, the decree absolute is granted six months or less after the decree nisi is granted. An agreement between the parties showing arrangements for the welfare of minor children of the marriage is crucial to the granting of the decree absolute. It must also be shown that ancillary matters are adjourned to chambers for a specified date.{{more}}

• Q: What happens after the decree absolute is granted?

• A: After the divorce is granted there remains the task of distributing any property that both parties own, addressing any custody issue, determining spousal support/maintenance. If the parties have not parted on a sour note there could be a chance of reaching an agreement on their own without controversy. This would prevent a lot of anger and discontentment. A lawyer may be needed to draft the document especially if many assets are involved. The parties may thereafter approach the court to have the agreement recorded as a consent order.

• Q: How does the court help?

• A: If no agreement is reached between you and your wife/husband, you may have to resort to the court to have a decision on financial relief. The law has empowered the court to make financial provisions and property adjustments. Several guidelines are provided and case law has worked out some principles. The judge however has a wide discretion in determining the shares of each party. It may be shared equally or one party could be given a higher percentage than the other depending on the evidence. According to Lord Nicholls of Birkenhead in White v White (2000) “the outcome ought to be as fair as is possible in all the circumstances,” but he opines that “features which are important when assessing fairness differ in each case and sometimes different minds can reach different conclusions on what fairness requires. Fairness like beauty lies in the eyes of the beholder.”

• Q: What are the statutory guidelines?

• A: The laws provide a list of matters that the court should be mindful of when exercising its powers. These are considered together in order to arrive at a fair settlement. The first is given below and I will consider the others in subsequent articles.

The income earning capacity, property and other financial resources which each of the parties to the marriage have or are likely to have in the foreseeable future. This is reasonable, as maintenance and distribution of property can only be done on the basis of the resources that the parties own or what may be reasonably foreseen in the future. The court will therefore look at the present earnings- salaries or wages, income from other sources and real property for both parties. Parties will have to present salary slips and other documents to substantiate claims. The court will take note where parties are capable of earning more in the foreseeable future because of the potential marketability of a party or the expected yield of certain investments.

The court does not speculate but it looks realistically at the situation of both parties and takes into consideration compelling evidence. It will take account of how properties were acquired and who has the responsibility for mortgages and loans.

The court may come to the conclusion that both have the same or that one party enjoys a significantly greater income or earning capacity or other property or financial resources over the other.