Sometimes during financial remedy proceedings on divorce Spouse A may allege that a property which is owned in the name of a Third Party (Party C) really belongs to the other spouse (Spouse B). The Family Procedure Rules state that a Court can add a Third Party to proceedings if it is “desirable” so that the Court can resolve all the matters in the dispute. If a Third Party is added as a party to the proceedings, then the Court will give directions for service on that Third Party of all relevant documents concerning the financial remedy on divorce of Spouse A and Spouse B.
Normally, it is the spouse alleging the legal title is not correct and that really Spouse B owns the property rather than the Third Party who makes the application. The Court can however also add the Third Party of its own initiative. The application is normally made on a Form D11 and must be supported by evidence setting out Spouse B’s real interest in the property. The Third Party should be joined at the earliest opportunity in the financial remedy proceedings.
Once joined, directions should be given for the issue of the ownership of the property to be fully pleaded by Points of Claim and Points of Defence together with separate witness statements. The dispute as to the ownership of the property held by the Third Party should be heard separately as a preliminary issue. The Third Party once joined, will be subject to direct disclosure obligations and subject to cross examination. They will be entitled to cross examine other witnesses and the parties. The Third Party will have their own and separate legal team.
It is for the party alleging that the beneficial interest in the property is owned by Spouse B rather than the Third Party who should make the application at the earliest opportunity. There can however be costs consequences. If on the preliminary issue hearing Spouse A loses and the Court decides that the property is owned both beneficially and legally by the Third Party, then Spouse A should be ordered by the Court to pay the costs of the Third Party and also Spouse B in dealing with this preliminary issue point. The Court can therefore make costs orders in these Third Party proceedings and Spouse A should think very carefully before making unwarranted and unnecessary applications for joinder of a Third Party.
T: 029 2034 2233
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Author: Melanie Hamer
Published: 30.08.24