ANCILLARY RELIEF AND THIRD PARTY INTERESTS:
A PRACTICAL GUIDE
Copyright
Fiona Gibb. May 2004-All rights
reserved.
No part of this document may
be copied or used without the written permission
of the author.
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1 1.
INTRODUCTION
1.1
1.1 On even the most straightforward application for ancillary
relief there are bound to be a variety of situations
in which consideration needs to be given to the
interests of third parties.
1.2 1.2 The consideration which each third party interest merits
will depend on the type of interest, the asset
involved and relevance to the issues in the case.
Some interests of third parties will only be
peripheral and may require cursory consideration;
others may be central to the main issue and outcome
of the case and will require much more detailed and
careful consideration.
1.3
1.3 The purpose of this part of the seminar is to look at a
number of situations where consideration of a third
party interest has arisen in the case of David and
Victoria Fiercely-Litigious, and to examine in each
situation the practical consequences which follow.
The list of potential “third party” situations is
not meant to be exhaustive.
2
2
THIRD PARTY INTERESTS AND THE MATRIMONIAL HOME
2.1 2.1
At the earliest stage possible obtain office copy entries
for the matrimonial home (and any other property
which the parties may own or have an interest in).
These will reveal most third parties who may have
some sort of legal interest in the property from
someone whose name appears on the title deeds to the
mortgage company who have a charge over the
property.
2.2
2.2
Third Party whose name is on the title deeds
2.2.1
2.2.1 An examination of the office copy entries reveals that
David Fiercely-Litigious, purchased the fmh with his
brother Dwain. Your client, Victoria
Fiercely-Litigious, appears on the face of it to
have no interest in the property at all. What should
you do?
2.2.2
2.2.2 Protect
Victoria’s position by applying for a notice
pursuant to the Land Registration Act 2002. Obtain a
copy of the Deed of Transfer/TR1 to see if there is
any declaration of the beneficial interests.
2.2.3
2.2.3 Take
Victoria’s
instructions on whether she says it is a genuine
arrangement or a sham; whichever it is it will be
necessary to get Dwain joined as a party to the
proceedings.
2.2.4
2.2.4 Victoria’s Form A and Form E should contain details of
Dwain’s interest in the property; Form E and the
Concise Statement of Issues should make clear if
Victoria’s case is that it is genuine or sham.
2.2.5
2.2.5 Consider serving a copy of your application in Form A and
Form C (the Notice of a First Appointment) on Dwain
with a covering letter explaining that he may wish
to intervene in the proceedings. Strict application
of Rule 2.59(3) would mean waiting for DJ to direct
service at FDA (see annex
1); early service may save costs of
second FDA.
2.2.6
2.2.6 At least 14 days prior to FDA comply with Rule 2.61B(9)
(see annex 2)
2.2.7
2.2.7 Consider what directions you need to seek at the FDA. This
may well depend on whether Dwain’s interest is in
dispute. Examples could be:
·
Leave for Dwain to intervene/an order that he be joined as
a Respondent
·
Filing of evidence setting out respective cases vis a vis
his interest
·
Is there any particular disclosure which needs to be
obtained from David or Dwain. If Dwain is a party
orders for disclosure can be made against him.
·
Consideration as to whether there needs to be a trial of a
preliminary issue with regard to Dwain’s interest,
and therefore whether an FDR will be appropriate.
The court needs to know how much of the fmh is owned
by David and
Victoria
before it can determine what financial provision
orders it can make.
2.3
2.3
Third Party who claims an interest in the FMH
2.3.1
Victoria
tells you that she and David own the property
jointly but that when they purchased it her friend
Geri agreed to put a substantial sum towards the
purchase because she and David could not afford it
at the time. Geri made it clear that she would only
want to realise her interest if the marriage broke
down.
2.3.2
2.3.2 Cross your fingers and hope that they sought legal advice
when the fmh was purchased, and that Geri’s
beneficial interest is clear from the deed of
transfer/TR1. This would be determinative of the
size and existence of her interest but may well not
have happened!
2.3.3
2.3.3 Try to clarify
with David’s solicitors’ whether he accepts that
Geri has an interest in the property
2.3.4 2.3.4 Whether Geri’s interest is in dispute or not, include
details of it in Form E either as a quasi mortgagee
under para 2.1, or under para 4.5 (“other
information”). Set out
Victoria’s case vis a vis Geri’s interest in Concise
Statement of Issues
2.3.5 2.3.5 Not appropriate to serve Geri with Form A, but advisable to
write to her to inform her of the proceedings and
the date of the FDA so that she can apply to
intervene if appropriate. Tell her to seek her own
legal advice; she may issue application under TOLATA.
2.3.6 2.3.6 Consider directions required at FDA; likely to be similar
as 2.2.7 above. Trial of Geri’s claim will need to
be dealt with as a preliminary issue. FDR procedure
probably inappropriate
2.4
2.4
Other Third Parties and the FMH
2.4.1
2.4.1 Easy to forget to serve mortgagees, but is required
pursuant to rule 2.59(4).
2.4.2 If
Victoria
wants fmh transferred to her, approach bank or
building society to find out if they will release
David from his mortgage covenants, and try to get
confirmation in writing. This may be an important
aspect to Victoria’s chances of keeping the fmh.
3
3.1 THIRD PARTY INTERESTS AND OTHER ASSETS
3.1
3.1
Pensions
3.1.1 3.1.1 Victoria
wants to claim a share of David’s pension. Don’t
forget to tick the box on Form A and pursuant to
Rule 2.61A(3) specify the terms of the order
requested (see annex 3).
3.1.3
Continued
