Wednesday, 23 April 2008


There appears to be a current trend for involving third parties in financial proceedings ancillary to divorce. In my experience it is a growing phenomenon especially in farming cases and those involving family businesses. “In case we can’t get what you deserve from your spouse, we’ll involve his or her parents,” seems to be the advice being given.

Recently I have been involved in two such matters, representing the third parties on both occasions. Now, pardon me for expressing my view but they never actually married the claimant, so why should they be penalised? They may have given birth to someone who did so marry, but in the eyes of the law that’s hardly a crime and certainly doesn’t give rise to vicarious liability.

As a lawyer I advise clients on the law and how it affects their position. I find it exasperating therefore when the opposing lawyer and his client think that an issue can be resolved by verbal intimidation, litigious threats, a rule of thumb, the misconstruction of case law or even a wish and a prayer.

Complex legal and equitable principles as well as trust law are usually involved. The legal position therefore needs to be properly and meticulously researched. There is not, however, any legal principle to the effect that simply because you spend time or money on someone else’s property or enterprise that you are then entitled to share in it or even assume ownership in its entirety. There are always other factors involved, including for instance common intention (and that’s before you get into considering the evidence to prove your case). Of course, it may all seem unfair depending where you are arguing from but whoever said the law or even life itself for that matter is fair?

If third parties are joined in your ancillary proceedings then you need to ensure that you do have a winnable argument. If not and as in my cases, no declaration will be made in your favour, the third parties will be released from the proceedings and you can be ordered to meet their legal costs.

This morning one of the expert witnesses involved asked me if succeeding for a third party in such circumstances gives me a feeling of euphoria.

Generally in contested family proceedings there are no winners, only losers. Both parties bear their own costs and everyone, including the lawyers, leaves the court thinking “what a waste and if only…” When you act for successful third parties however the victor doesn’t just win, he is victorious! The loser gains nothing except his own and the third party’s legal bills to discharge. For a family lawyer these are strange concepts and feelings. If I get to like them then I shall have to take up litigation instead with its ethos of win or lose.

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