Matrimonial Agreements – A Preliminary Issue?

Writing in the New Law Journal of 26 November David Burrows considered the provisions of the redrafted ancillary relief rules modelled on the Civil Procedure Rules envisaging the identification of the issues at an early date. He argues that trial of whether or not there is a concluded agreement between the parties prior to the issue of ancillary relief proceedings may be dealt with as a separate and preliminary issue; that if a case is dealt with in this way trial of the preliminary issue may be an effective form of conciliation, since it may lead to a settlement of the substantive issue. Other matters which could be tried as preliminary issues were whether a husband has failed to disclose assets and, if so, what is the court’s estimation of his capital; what is the wife’s earning capacity (if any) and what is the real income of the husband; what is the valuation of particular assets; what is the borrowing ability of one party to enable him to raise funds to pay a lump sum to the other? Split hearings would be justified if a finding on the preliminary issue in any way assisted settlement of the case and thereby achieved a saving of costs, abbreviated the proceedings and, perhaps, went some way to easing the anxiety of the parties as a trial of the full application approached.