When three’s a crowd - How to navigate third party claims in divorce and financial proceedings

28 September 2020

Where there are disputes about the ownership of assets within divorce and financial proceedings, couples can encounter background noise from third parties – the extent of which will  depend on the value or type of asset.
 

Third party involvement in proceedings or the threat of involvement can add an additional layer of stress and upset in what can  be a complex and emotionally charged situation for those who are going through a divorce.

One spouse may claim that an asset (for example shares in a business, a trust or a property) is matrimonial and therefore should be available for distribution upon divorce. This claim may be disputed by the opposing spouse or, indeed, a third party.

Third parties (for example grandparents, trustees or siblings) who claim an interest in an asset may seek to join existing financial proceedings between spouses in order to defend their interest in an asset or they may be asked to join existing financial proceedings so that one spouse can challenge their alleged interest in an asset.

In certain situations where a third party interest needs to be defended or challenged, and the court agrees, that third party should be added to the existing financial proceedings at the earliest opportunity to enable the court to determine the veracity of the third party’s claim and therefore the extent of the resources available for distribution between a divorcing couple as part of an overall fair financial settlement.

Third parties can be joined to financial proceedings in, predominantly, two sets of circumstances:

  1.  When a third party is asked to be joined to existing proceedings by one spouse who claims that the other spouse is beneficially entitled to an asset held in that third party’s name so that the third party can be challenged about the legitimacy of their interest. 

    Example
    The husband claims that the wife’s parents hold shares in a family company that are in fact held on trust for the wife and which she is therefore beneficially entitled to. The husband may want to join the wife’s parents to the existing proceedings in order to challenge the validity of their holding in the company.
     
  2.  When a third party claims a vested interest in matrimonial assets already in dispute between a husband and wife and subsequently seeks to be joined to the proceedings to defend their interest. This third party is known as an intervener. This third party claim may or may not be supported by either the husband or the wife.

    Example
    The wife’s parents provided a substantial sum of money to enable the parties to purchase a family home and they wish to assert and protect their beneficial interest in the property and seek to be re-paid when the property is sold. The wife’s parents may want to intervene in the proceedings to lay claim to their interest in the property.

A third party who is seeking to be joined or has been asked to join existing proceedings will need to be separately represented. Usually, there will be a preliminary hearing to determine the “joinder” issue. . It is by no means automatic for a third party to be joined to the proceedings and a court will need to determine whether they should be and will first consider the extent of the third party’s claimed interest, the merits of it and will be mindful of the issues of costs. The court can also invite interested parties to intervene should they consider this necessary.

In most cases, any third party claim needs to be determined before a court can consider a financial outcome between a husband and wife. This may result in a contested hearing where a third party will need to give evidence on their claim before any further substantive hearings in the main financial proceedings are even heard.

No doubt, this can be very stressful, time-consuming and expensive for all parties involved and careful consideration must be undertaken by any party seeking to join a third party, or a third party themselves wanting to intervene in proceedings. Failure to litigate a third party claim may have significant implications for one party’s financial award upon divorce; in addition, a third party is not necessarily bound by any finding of the court or request for disclosure unless they have been joined to the proceedings, which would cause significant difficulty when trying to enforce an Order against a third party at a later stage. However, third party involvement will almost certainly increase legal costs significantly (with the added risk of cost orders) and therefore a careful cost benefit analysis needs to be undertaken as part of any strategic planning at the onset of a case.

Third party claims amidst a divorce and financial dispute can add another layer of complexity and it is important to take both a cautious and creative approach to such litigation. Our family team at Kingsley Napley has extensive litigation experience and the instinct which makes us uniquely placed to recognise and understand the issues and strategy required to defend and contest third party claims.

Further Information

If you have any questions about the issues covered in this blog, please contact a member of our team of family and divorce lawyers or click here to get started online and find out where you stand.

 

About the author

Alexandra is an Associate in the Family and Divorce team with experience of all types of private family law work relating to both finances and children. Alexandra offers practical and realistic advice and provides excellent care for her clients, working through technical legal problems pro-actively to achieve the best possible result. 

 

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