"What " "Ancillary Relief"" Orders Can the Court Make:
The court has the authority to issue various ""ancillary relief"" orders regarding all financial aspects of the marriage, which can also be referred to as ""financial relief,"" such as:
- periodic payment orders for spousal maintenance and/or child support;
- lump sum payment orders;
- property transfer or sale orders;
- orders to set aside transactions intended to defeat an ""ancillary relief"" application; and
- other orders to protect marital assets.
The legal definition of maintenance is the provision of necessary living expenses to a spouse after separation or divorce. Maintenance is not necessarily paid by the husband to the wife; the husband also has the right to request maintenance from his ex-wife. When distributing family assets, the court starts with a 50-50 division of marital assets. However, the court will consider if there are sufficient reasons to deviate from the 50-50 equal distribution principle and may order one party to receive more than half of the marital assets.
When determining the amount of maintenance and the distribution of family assets, the court will consider various factors, such as:
- each party's income and earning capacity;
- each party's property and financial resources;
- the source of the marital assets;
- each party's financial needs;
- each party's obligations and responsibilities;
- the age of the parties;
- the duration of the marriage;
- each party's contributions to the welfare of the family;
- the standard of living before the marriage breakdown;
- the behavior of the parties during the marriage; and
- (other relevant factors.
Additionally, under Chapter 192 of the Matrimonial Proceedings and Property Ordinance, if a party unjustifiably transfers, gifts, or sells marital assets to a third party at a low price, intending to defeat an ""ancillary relief"" application, the court has the authority to set aside such transfers, gifts, and sales, and compel the third party to return the marital assets.
The Legal Procedure for "Ancillary Relief" Applications:
An ""ancillary relief"" application is a legal process in the Family Court that adjudicates all financial aspects of the marriage during "divorce" or "judicial separation" proceedings. In other words, an ""ancillary relief"" application cannot be made independently before initiating ""divorce"" or ""judicial separation"" proceedings.
After filing a divorce petition, the court must consider whether the parties meet the legal conditions for divorce. If there is insufficient evidence, the court will dismiss the divorce petition and will not handle any "ancillary relief" application. If there is sufficient evidence, the court will grant a divorce decree and can address (1) child custody and (2) ""ancillary relief"" matters. After filing a judicial separation petition, the court does not need to consider whether the parties meet the legal conditions for divorce and can directly handle (1) child custody and (2) ""ancillary relief"" matters.
Unless otherwise agreed by the parties, after one or both parties apply for "ancillary relief," the court will adjourn the matter to a later date and instruct the Social Welfare Department to submit a report, as well as order both parties to submit affidavits of financial means. After one party submits their affidavit, the other party can request further details. To define the points of contention in the ""ancillary relief"" application: (1) the judge can decide the scope of responses required for the details requested and the necessary evidence; (2) the judge can give directions regarding expert evidence on the valuation of marital assets; (3) the judge can give directions on the evidence and witnesses each party intends to present; (4) the judge can decide whether it is appropriate to refer the case to a ""Financial Dispute Resolution Hearing""; if not, they will adjourn the case for out-of-court mediation or private negotiations.
During the "Financial Dispute Resolution Hearing": (1) the judge acts as a mediator, attempting to reduce the parties' financial relief disputes to facilitate an amicable settlement, avoiding a formal trial for the ""ancillary relief"" application; (2) all parties must inform the court of any settlement proposals made before the hearing and the responses to those proposals; (3) the parties attending the hearing must make their best efforts to reach an agreement on the relevant disputes.
If the "Financial Dispute Resolution Hearing" cannot resolve the parties' disputes, the court will schedule a formal trial for the ""ancillary relief"" application. Additionally, (1) the judge who conducted the ""Financial Dispute Resolution Hearing"" will not be involved in the subsequent formal trial of the ""ancillary relief"" application; and (2) any statements and admissions made during the ""Financial Dispute Resolution Hearing"" cannot be used as evidence in the subsequent formal trial of the ""ancillary relief"" application.
During the formal trial, after hearing the testimony of both parties, reviewing the submitted documentary evidence, and considering both parties' statements, the judge will make a decision and issue an order for financial relief. If a party's previous settlement proposal was better than the court's financial relief order, that party will be considered the winner, and the losing party will likely have to pay the winning party's legal costs."
