Is the English Law on Ancillary Relief Defective Essay

Is the English Law on Ancillary Relief Defective - Essay Example In cases of divorce, nullity of marriage, judicial separation and presumption of death and dissolution of marriage in England and Wales, a party to the dissolved marriage may claim for pecuniary award for the determination of issues regarding consequential monetary matter. This court proceeding is formally called Ancillary Relief. It is that part of the course of action which determines the financial concern as between the parties to the marriage. In reality, once the husband and wife decide to annul their marriage, they usually see eye to eye and make up their minds to go through the process of divorce, taking into consideration the fact that they have earnestly thought about it over and over, including its consequences. Eventually, after the couple has finally decided to accept that their marriage is really over, they commence the discussion on issues regarding the children (if there be any) and the separation of their property. More often than not, the couple sorts out by agreement these aforesaid issues. Generally, for cases of divorce between spouses, where the applicant is a resident or domiciled in England, the English Courts have the jurisdiction to conclude and determine whether the granting of a decree of divorce is warranted under given circumstances. The process of ancillary relief is included in this procedure wherein the English Courts are given a wide range of discretion to decide the amount of relief to be awarded for the benefit of one of the spouses and/or their children. Considering the fact that jurisdiction is vested on the English Courts if the applicant is a resident or is domiciled in this country, it follows then that a foreign spouse who is domiciled and resident abroad may be granted a financial relief. But this is not to say that the rule on this situation is limitless. There are some cases where the courts have declined to issue orders of relief to those foreign spouses on the ground that the courts believed that it would be utterly ineffective to do so. One relevant case is the early case of Tallack v. Tallack [1927], where the court found that one respondent had no substantive link or effective connection with England, and the courts of the country where he is domiciled and resident would have rejected the execution of the English order, the English court refused to make an order of ancillary relief. The all-embracing and extensive scope of use by the English courts' legally sanctioned authority to decide between a variety of outcomes in determining the financial award for ancillary relief has the underlying moral basis of trying to preserve for each party their financial status as it would have been, had the marriage continued to subsist. [Sherwood v. Sherwood (1928)] On the other hand, ancillary relief of the English law is often criticized and condemned for being flawed by some jurists overseas. They claim that "it is inappropriate to the modern concept of matrimony as a partnership since it is 'a law of separation of assets' and that it is illogical in a marriage partnership in which in theory there should be 'community of property' unless there are special reasons for contracting out of such a position." In the landmark case of White v. White (2000), Lord Nicholls made a clear-cut statement that "(t)he statutory provisions lend no support to the idea that a claimant's financial needs, even interpreted generously and called