Q) What is an Intervener in financial remedy proceedings?
A) An Intervener is a third party (such as a parent/family member/friend) who is claiming an interest in a property that is a subject matter of dispute in financial remedy proceedings.
Q) What is an example of someone having a beneficial interest in a property?
A) H and W marry. H’s mother pays £50,000 to put towards the property purchase which will be in the joint names of H and W. Two years later H and W divorce and H states that £50,000 is owed to his mother to repay the sum. W argues that this was a gift and that the mother did not expect the amount to be repaid. The mother will then be invited to Intervene in the proceedings if she states that she has a beneficial interest in the property.
Q) What can I do if my son/daughter and his spouse are divorcing, and I believe that I should be repaid monies that I put towards the purchase of a property?
A) It is essential that you seek independent legal advice as a matter of urgency, especially before your son/daughter fills in their Form E (Financial Statement). Your legal adviser will then consider the facts surrounding your case and will inform you if you need to take any further action.
Q) I have been invited by the Court to “Intervene” in the financial remedy proceedings that my son/daughter are involved in. What do I do?
A) You will need to seek independent legal advice as a matter of urgency. The Court will set strict time limits for you to respond and if you do decide to Intervene, you will have to produce fully pleaded points of claim and detailed statements. Directions from the Court can include a clause that prevents the Intervenor from pursuing their claim and they then may be bound by any final decision of the Court.
Q) What should I do if I wish to protect my interest in a property and prevent it from being included in the asset pool of the divorcing parties?
A) Before you pay the money, ensure that at the purchase stage, your interest is recorded on paperwork such as a Deed of Trust. This document will clarify if the monies are a gift or a loan (and if a loan, the terms and conditions of any repayment).
Q) What happens if I argue the money was a loan and not a gift?
A) The Court will determine the issue after considering the facts surrounding the case. If you have a Loan Agreement and it is formally drafted by a solicitor, with repayment terms and interest detailed, this will then strengthen your argument. Even if the Court finds it is a loan, they may then consider whether it was a soft loan (in which case if it is, your claim may struggle to succeed).
Q) Can I use the same solicitor as one of the other parties to represent me?
A) No, you will need to get an independent legal adviser to assist you with your case as your case may differ from that of the other parties.
Q) Will I be able to claim my costs back?
A) You may be able to seek your costs if you are successful in your claim. However, in some cases, it may be that costs are repaid depending upon the outcome and conclusion of financial remedy proceedings.
Q) How long is it likely to take to conclude a case?
A) Intervener proceedings can be lengthy and can take over a year to conclude. The Intervener’s claim will be decided upon at a Preliminary Issue Hearing, which can be heard over two days (sometimes three). These proceedings are extremely expensive and expert legal advice should be sought as a matter of urgency to avoid wasted costs.
At Consilia Legal, we have experience of representing Interveners in such proceedings and are happy to provide a free initial consultation to discuss the matter.