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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3.1.2
David can be ordered to pay her (spousal) periodical
payments out of which she can make the monthly
repayments
·
As part of a compromise, David could undertake to
redeem the debts/pay the monthly instalments, but if
he defaults the institutions will come after her and
as between her and the third party lenders, any
undertaking/indemnity from David is likely to be
worthless
·
Any undertaking by David with regard to paying debts
should be coupled with at least a nominal pps order,
for enforcement purposes
·
Advise her to make contact with the various
institutions to keep them informed about what is
going on, and if possible she should offer to pay
something each month, even if it is a very modest
amount
·
Proving that sole debts are “matrimonial” ones can
be a difficult and costly exercise which is likely
to be out of proportion to the assets and issues in
the case
·
Advise her of the distinction which the court will
draw between her “hard” and “soft” debts
6.4
The issue of bankruptcy and the effect it has on
ancillary relief cases is in itself an area on which
a whole talk could be based. I do not propose to
attempt to deal with it today other than by
reminding everyone that if either the husband or
wife is adjudicated bankrupt, then there is little
point in pursuing claims for capital. This is
because on bankruptcy, the bankrupt’s assets vest in
his trustee in bankruptcy and there is therefore
nothing against which an MCA 1973 order can bite.
7
7
DISCLOSURE FROM THIRD PARTIES
7.1
7.1
Victoria
suspects that David is siphoning off cash through
Rebecca. She is gunning for Rebecca and wants to get
disclosure of her bank statements as otherwise the
court is not going to be able to get at the truth.
What can you do?
7.2
7.2
The general rule is that a person who is not party
to litigation cannot be ordered to disclose or
produce documents. However under rule 2.62(7) you
can apply to the court for an order requiring any
person to attend an inspection appointment in
advance of the main hearing, for the purpose of
furnishing specific documents, the production of
which appears to be necessary for disposing fairly
of the application for ancillary relief or saving
costs. This merely brings forward the time at which
a witness might be required to attend court as if
under subpoena, and the usual rules with regard to
conduct money and legitimate objections apply. The
third party can be legally represented at the
hearing, and if the third party successfully opposes
the application he/she is entitled to indemnity
costs from the Applicant.
7.3
7.3
As far as Victoria’s case against Rebecca is
concerned, the case of
Frary v Frary [1993] 2 FLR 696 makes it
clear that the inspection appointment cannot be used
to obtain general information as to the extent of a
new partner’s finances where there was no particular
relevance in the precise limits of her resources,
and where neither the husband nor his new partner
had been secretive about their financial relations
with each other. The wife had no intention of
calling the new partner at the hearing to give
evidence, and to seek an order against her that she
disclose a wide range of documents as evidence of
her overall means was oppressive and unnecessary.
7.4
7.4
It is the writer’s view that courts are still
reluctant to order someone who is a stranger to the
proceedings to produce evidence of their means. For
Victoria
to seek an inspection appointment against Rebecca,
she would have to have pretty good evidence for
suggesting that David was transferring money to
Rebecca, and not just mere suspicion. The request
should also be for specific documents not just
general fishing. At the end of the day, Victoria
needs to remember that she will have to show that
the production of the document in question is
necessary for disposing fairly of her application
for ancillary relief
7.5
7.5
The use of inspection appointments as a stick with
which to beat institutions such as pension companies
who are slow in providing information required for
Form E, seems to have quite widespread approval from
District Judges. It frequently happens that
documents miraculously materialise from such
organisations when served with notice of an
inspection appointment.
8
8
CONCLUSIONS
8.1 8.1
It should by now be obvious that there are many
different instances where third party interests can
arise during the course of even a straightforward
application for ancillary relief.
8.2
8.2
Practitioners should always be aware of those
interests and need to give thought to what impact
they will have on the case and what action may be
required as a result.
Annex
papers
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