Civil Law with Family Characteristics

The family courts – and the family lawyers who practise in them – have over the years faced criticism for applying the general law of property inconsistently with the other divisions. This article explores the reality that, whilst the law is the same, case management in the family courts is indeed different. These differences are both inevitable and legitimate.

First, the criticism. Perhaps the most acute expression of disappointment in the family courts for ploughing their own furrow was Lord Sumption’s speech at the 2016 ‘At A Glance’ conference. Facing the assembly of family lawyers, Lord Sumption said as follows:

‘At the bar, I liked to trespass on other people’s cabbage patches. As a judge I do it most of the time. But there have been two occasions in my professional life when I have been shaken in my view that it is all just law. One was my only foray, as Counsel, into patent litigation. I will not trouble you with this unhappy story. It persuaded me that chemical patents at least were a remote juridical island, best left to its savage inhabitants. The other occasion was when I started reading up in preparation my first encounter with family law in the Supreme Court.

The case was Prest v Petrodel Resources [2013] 2 AC 415. I call it a family case, but I suppose that the essential issue was whether it really was one. The question was whether the property of the husband’s companies was property to which he was “entitled in possession or reversion” for the purposes of section 24 of the Matrimonial Causes Act 1973. This mattered because otherwise there was no power to transfer it to the wife. Some people might have thought that this depended on the law of England relating to property and to companies. By that law the answer was clear. A shareholder, even a sole shareholder, had no property whatever in the assets of a company. The company was someone else. So it was with some surprise that I discovered, reading through past authorities, that the law of England was widely thought not to apply in the Family Division …’

This lecture followed Prest v Petrodel [2013] UKSC 34, in which the Supreme Court held that Moylan J, the first instance judge, was wrong to hold he had the power under s 24(1)(a) Matrimonial Causes Act 1973 to ‘pierce the corporate veil’ and make findings that assets held in companies were directly available to the shareholder husband. However, they also allowed the wife’s appeal against the decision of the Court of Appeal – which had corrected Moylan J’s error – and declared that assets of the company were held on a resulting trust for the husband (a point that had not been argued below).

Lord Sumption relevantly held as follows:

‘37. If there is no justification as a matter of general legal principle for piercing the corporate veil, I find it impossible to say that a special and wider principle applies in matrimonial proceedings by virtue of section 24(1)(a) of the Matrimonial Causes Act 1973. The language of this provision is clear. It empowers the court to order one party to the marriage to transfer to the other “property to which the first-mentioned party is entitled, either in possession or reversion”. An “entitlement” is a legal right in respect of the property in question. The words “in possession or reversion” show that the right in question is a proprietary right, legal or equitable. This section is invoking concepts with an established legal meaning and recognised legal incidents under the general law. Courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different. If a right of property exists, it exists in every division of the High Court and in every jurisdiction of the county courts. If it does not exist, it does not exist anywhere. It is right to add that even where courts exercising family jurisdiction have claimed a wider jurisdiction to pierce the corporate veil than would be recognised under the general law, they have not usually suggested that this can be founded on section 24 of the Matrimonial Causes Act. On the contrary, in Nicholas v Nicholas [1984] FLR 285, 288, Cumming-Bruce LJ said that it could not.’

The statement of general principle that the law was the same in the Family Court as elsewhere was vindication for two judges in particular: Mostyn J and Munby J. Amongst family judges, they have been most associated with an insistence the Family Court must apply the general law of property when faced with a question concerning those issues. To take two of their most oft-quoted judgments on this point: first, TL v ML [2005] EWHC 2860 (Fam), [2006] 1 FLR 1263 – one of Mostyn J’s most famous cases:

‘33. It is well established that a dispute between a spouse and a third party as to the beneficial ownership of property can be adjudicated in ancillary relief proceedings: see Tebbutt v Haynes [1981] 2 All ER 238, per Lord Denning MR at 241:

“It seems to me that, under s.24 of [the Matrimonial Causes Act 1973], if an intervenor comes in making a claim for the property, then it is within the jurisdiction of the Judge to decide on the validity of the intervenor’s claim. The Judge ought to decide what are the rights and interests of all the parties, not only of the intervenor, but of the husband and wife respectively in the property. He can only make an order for transfer to the wife of property which is the husband’s property. He cannot make an order for the transfer to the wife of someone else’s interest.”

34. It is to be emphasised, however, that the task of the judge determining a dispute as to ownership between a spouse and a third party is, of course, completely different in nature from the familiar discretionary exercise between spouses. A dispute with a third party must be approached on exactly the same legal basis as if it were being determined in the Chancery Division.’

Secondly, Munby J in A v A [2007] EWHC 99 (Fam), [2007] 2 FLR 467:

‘21. … But what it is important to appreciate (and too often, I fear, is not appreciated at least in this division) is that the relevant legal principles which have to be applied are precisely the same in this division as in the other two divisions. There is not one law of “sham” in the Chancery Division and another law of “sham” in the Family Division. There is only one law of “sham”, to be applied equally in all three Divisions of the High Court, just as there is but one set of principles, again equally applicable in all three divisions, determining whether or not it is appropriate to “pierce the corporate veil”.’

There is now long seam of case-law – especially post-Prest – of judgments approving these statements and emphasising the identical nature of the legal exercise irrespective of the division in which the argument takes place. A recent example comes from Michael v Michael (No 1) [2024] EWFC 463 per HHJ Hess (sitting as a deputy High Court Judge):

‘110. In analysing the genuineness and validity of this document and this situation, it is important at this stage for me to remind myself of the words of Munby J (as he then was) in A v A & St George Trustees [2007] EWHC 99:-

“Even in the Family Division, a spouse who seeks to extend her claim for ancillary relief to assets which appear to be in the hands of someone other than her husband must identify, and by reference to established principle, some proper basis for doing so. The court cannot grant relief merely because the husband’s arrangements appear to be artificial or even ‘dodgy’.”

111. Further, the law must be the same in a family court as it is in a court of chancery: see, for example, Thorpe LJ in Goldstone v Goldstone [2011] EWCA Civ 39.’

The sting of reproach has led to greater involvement in the family courts of specialist chancery counsel in cases involving intervenors (at least if they have the funds to engage their services). Well-funded legal teams are anxious to make sure they meet the challenge of applying the law identically in family process to how it is handled elsewhere. Many family practitioners will be familiar with parts of the case being ‘farmed out’ to chancery practitioners, and the matter taking on a formality around pleadings.

However, the management of these can at times seem somewhat artificial, or at least form an uneasy fit, with the dynamic of financial remedies cases. Chancery counsel leave court shaking their heads at the vagaries of family procedure, whilst family counsel (and occasionally judges) are bemused at the byzantine pleading disputes that are brought into play.

The reality is that, notwithstanding the emphasis on the exact equivalence set out above, these disputes do ‘feel’ different, and are handled differently, in the Family Court, to how they are dealt with elsewhere. In my view this is both explicable and legitimate.

There are, I suggest, five features that create a distinctive environment for intervenor claims in the Family Court.

First, and most obviously, the Family Court has a duty, independent of how each party presents its case, per s 25(1) MCA 1973, to consider (s 25(2)(a) MCA 1973) ‘the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future’.

Whilst an intervenor dispute engages third parties to the marriage and accordingly must be determined by reference to the relevant law of property, that dispute is itself taking place as part of the court’s duty to get to a true picture of the parties’ assets pursuant to s 25 MCA 1973. This much is made clear by Goldstone v Goldstone [2011] EWCA Civ 39, [2011] 1 FLR 1926, which also confirms that an intervenor claim does not involve the adoption of the Civil Procedure Rules 1998 (SI 1998/3132) (at [39]).

It follows therefore that the judge, whilst undertaking a ‘computation’ exercise, is not simply the umpire of that subsidiary claim, as is the case in civil proceedings, bound by the parties framing of the dispute put before it: the tribunal has a duty to try to establish the s 25 factors accurately. Whilst this does not change the law the judge has to apply (or give the judge latitude in distributing a third party’s assets save as where ownership by a party to the marriage can be established), it might well change the case-management approach. This is expanded on below.

Secondly, another striking feature (that helps explain the independent inquisitorial powers of the court under the s 25 rubric) is that the applicant – normally the wife – will often have no real idea about the financial affairs of the respondent/the family prior to separation (and perhaps most especially if the arrangements were designed to prejudice her). This means she may not be aware of the case, or cases, she has available to her prior to disclosure. Often, even ‘Form E’ disclosure may not produce material that reveals her best arguments. It is frequently the case that she has not been party to discussions or planning, or have any first-hand witness evidence, save of the vaguest sort. The tricky balance for a family practitioner acting for an ignorant claimant (and a judge case-managing the claims of one) comes in the tension between taking steps to substantiate generalised – but unproven – suspicion and the risk of plotting courses into what turn out to be expensive dead ends.

This can be contrasted to the situation in civil proceedings where the claimant normally (though not invariably) has a good sense of the case they ought to bring and can shape their factual basis of their pleadings through the direct experience of loss giving rise to the claim, material within their own knowledge and/or documents in their possession.

These factors find reflection in the important – though little quoted – [45] of Prest v Petrodel (above), in which Lord Sumption said as follows:

‘45. The modification to which I have referred concerns the drawing of adverse inferences in claims for ancillary financial relief in matrimonial proceedings, which have some important distinctive features. There is a public interest in the proper maintenance of the wife by her former husband, especially (but not only) where the interests of the children are engaged. Partly for that reason, the proceedings although in form adversarial have a substantial inquisitorial element. The family finances will commonly have been the responsibility of the husband, so that although technically a claimant, the wife is in reality dependent on the disclosure and evidence of the husband to ascertain the extent of her proper claim. The concept of the burden of proof, which has always been one of the main factors inhibiting the drawing of adverse inferences from the absence of evidence or disclosure, cannot be applied in the same way to proceedings of this kind as it is in ordinary civil litigation. These considerations are not a licence to engage in pure speculation. But judges exercising family jurisdiction are entitled to draw on their experience and to take notice of the inherent probabilities when deciding what an uncommunicative husband is likely to be concealing. I refer to the husband because the husband is usually the economically dominant party, but of course the same applies to the economically dominant spouse whoever it is.’

Thirdly, unlike in the civil courts, it is nearly invariably the case in family intervenor disputes that there is a high degree of interdependence and close relationship between the party to the marriage and the intervenor, even if formally separate. It is very uncommon to join a genuine stranger to the marriage as an intervenor (the validity of the parties’ commercial mortgagor, for example, is almost never in dispute).

There are myriad examples of these highly connected intervenor claims, the most common of which are: (1) a wider-family intervenor (normally firmly aligned with one party to the marriage); and (2) a company of which one party to the marriage is the main, or sole, director/shareholder.

It is striking – and has been observed in other articles on this topic (e.g. in Alexander Chandler KC’s ‘“Feral, Unprincipled and Unnecessarily Expensive” – A Guide to Intervenor Claims’, [2025] 2 FRJ 126) – that many intervenor claims arise from Indian subcontinental family arrangements where the couple have lived with their extended family. In these often highly patriarchal family dynamics, the claimant may have no idea at all about the family finances. Examples of such cases are numerous, such as G v G [2005] EWHC 1560 (Admin), [2006] 1 FLR 62 and Arif v Anwar & Rehan [2015] EWHC 124 (Fam), [2016] 1 FLR 359.

This can be contrasted with civil litigation where the parties are much more commonly, though not invariably, strangers to one another save as for their contractual relationship/tortious duty, etc.

A flavour of this distinction can be seen in A v A (above), in which Munby J observed:

‘20. There is one other preliminary point that I wish to emphasise. In deciding whether or not, and, if so, in what manner, these principles operate in any particular case, the court will of course have regard to the particular context and to the particular factual matrix. Thus it may be easier, for example, to “pierce the corporate veil” in the context of a small family company than in some larger-scale or more purely commercial context. Similarly, the inferences that can properly be drawn in the case of an asserted resulting trust may differ, even in a family context, depending upon the nature of the relationship between the parties; an inference appropriate in the case of a married couple may not be appropriate in the case of an unmarried couple, whilst an inference appropriate in the case of a couple (whether married or unmarried) may be wholly inappropriate as between siblings.’

Fourthly, even in this comparatively ‘binary’ area of law (at least compared to the distributive exercise) there are fallback pleadings that muddy the waters. For example, it is commonplace to argue as an alternative formulation that the asset, even if not owned by the party to the marriage, nonetheless falls as a resource available to them (as might be the case in a dispute about assets in the hands of a relative or parent, for example).

Fifthly, and strikingly, the Family Procedure Rules 2010 (SI 2010/2955) (FPR) give very little in the way of procedural guidance for case management of an intervenor dispute. FPR 9.26B simply says:

‘9.26B Adding or removing parties

(1) The court may direct that a person or body be added as a party to proceedings for a financial remedy if –

(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.’

There is not thereafter a series of procedural rules about how to handle that joined party’s claim. The various parts of the CPR that deal with Statements of Case, Reply and Amendment are not imported into the FPR. This means the procedural routes any given family case takes are bespoke, and turn largely on what counsel, and the judge, consider is appropriate/can negotiate between themselves/can remember to include.

The combination of: (1) an inquisitorial court; (2) variable directions; (3) no significant procedural guidance from the FPR in the case management of an intervenor dispute; (4) causes of action that emerge over the course of disclosure rather than pre-date it; (5) practitioners and judges for whom ‘pleadings’ case management are not their bread and butter; and (6) an unfamiliarity with the normal costs rules around pleadings (e.g. bearing the costs of an amendment, and costs budgeting), means that the route these cases take frequently diverges from the equivalent case working its way through the civil courts.

It is worth noting, on this point, that the Family Court has no jurisdiction to deal with a TLATA dispute (which forms perhaps the nearest civil equivalent in subject matter to a family case). When these sometimes cross a family practitioner’s desk – having been folded into Schedule 1 claims for example – a judge with jurisdiction to sit in the Family Court and the county court needs to be identified. These judges do not sit at the Central Family Court, the main home of the Financial Remedies Court, where the family judges most experienced in complex financial disputes sit, and to whom intervenor disputes are frequently allocated. The judges who deal with the complex intervenor business therefore do not have a professional sideline in an aligned area that brings them into contact with the rules of pleadings, costs management, etc.

This professional non-specialism, alongside the other factors set out above, means for example, it is unusual (as against civil process) for:

(1) a formal application for an amendment of pleading to be brought in the family courts. What is more, in civil disputes, a party who seeks to amend is normally ordered to pay the costs of the other party incurred in doing so – which is a regime alien to the family courts;

(2) a pleading defect to be fatal to a party’s case;

(3) closing submissions, or the judgment, to focus in detail on the minutiae of the pleadings.

Where do these observations leave the Family Court/the practitioner advising a party to an intervenor claim? Here are some thoughts.

First, one should expect that disclosure will often come ahead of pleading. This is in contrast to the general approach in civil cases, where the pleading comes first and thereafter frames the disclosure process. The Family Court is likely to be indulgent of a more wide-ranging pre-pleading discovery exercise than might be the case elsewhere. The common submission from a potential respondent – that the claimant should ‘put up or shut up’ can only really have validity after proper pre-action disclosure has taken place. Quite where the balance lies between a sketch of claim focussing the enquiry vs wide ranging disclosure, and when the pre-pleading exercise should end and detailed pleadings begin, will inevitably be a case-by-case issue.

There is however a relatively low bar to deferring consideration of pleadings to a hearing consequent on the First Appointment, which itself can be used to consider specific disclosure either via questionnaire of the other party, or through third party disclosure applications. FPR 21.2 provides the court with powers to make orders for disclosure against a person not a party. The test for the order is:

‘(3) The court may make an order under this rule only where disclosure is necessary in order to dispose fairly of the proceedings or to save costs.’

This has an echo of CPR Part 31, which deals with disclosure and inspection and provides for the court to make pre-action disclosure orders on the following test:

‘(3) The court may make an order under this rule only where—

(a) the respondent is likely to be a party to subsequent proceedings; …

(d) disclosure before proceedings have started is desirable in order to—

(i) dispose fairly of the anticipated proceedings;

(ii) assist the dispute to be resolved without proceedings; or

(iii) save costs.’

The Family Court does not have a ‘pre-action disclosure’ rule (aside from the comment in FPR PD 9A pre-application protocol that ‘there is sometime an advantage in preparing disclosure before proceedings are commenced … However, solicitors should bear in mind the objective of controlling costs and in particular the costs of discovery and that the option of pre-application disclosure and negotiation has risks of excessive and uncontrolled expenditure and delay’). This is presumably because such a rule is otiose given the cause of action is created by the divorce (and people do not generally undertake speculative pre-action discovery to see if their spouse is worth bringing a claim against).

However, whilst the issue of Form A means the parties are in action against one another, the intervenor claim can be considered a subsidiary action within that action, and it is fair to treat the early stages of the case as, effectively ‘pre-action discovery’ prior to pleadings. To put it a different way, not to do so would be to deprive the claimant spouse of the opportunity they would have had the action been brought in a different division.

Secondly, the pleading/argument the claimant brings might be necessarily – and reasonably – more wide-ranging, and less detailed, than would normally be the case in a civil claim. The claimant can, after all, only speak to their (lack of) knowledge and what can be pieced together, inferred or speculated at from the disclosure. Their case may change markedly as they are brought into a fuller picture. It may be more appropriate for a different party to be ‘claimant’ – notwithstanding that their case might not, on first blush, need making out (e.g. they appear to be party to a valid Deed of Trust), and for the ignorant spouse to interrogate instead. An interesting approach to a case engaging these issues is Arif v Anwar & Rehan (above), in which Norris J directed that the parties’ son be claimant in respect of a Deed of Trust in respect of the family home of which he appeared to be beneficiary, and for the wife, whom Norris J decided had been wholly ignorant of the treatment of the family home, to respond to the claim.

The pleading may – as alluded to by Lord Sumption in Prest (above) – also place more weight on adverse inferences, or the close connection of the parties and the intervenor (and, perhaps, the ‘artifice’ of documented arrangements between them), than would be common in the civil jurisdiction. This is more appropriate than would be the case between true strangers who commonly oppose one another in civil disputes.

Thirdly, having regard to the frequently interconnected nature of the intervenor and the parties to the marriage, it may well be the case that the FDR should be timetabled ahead of resolution of the intervenor dispute, giving the intervenor the same opportunity to negotiate on their claim the parties to the marriage enjoy. The TL v ML (above) discipline – at [36] – that mandates that the property rights of the parties have to be known before the FDR and distributional negotiation can take place, may in some cases be appropriate (e.g. in those rare cases where the intervenor is a genuine stranger to the marriage). However, it is much more likely to be the case that the connected intervenor can meaningfully participate at FDR regarding their asserted interest prior to the costs of contested hearing being incurred. It is submitted the better approach will generally be to have an FDR prior to determination, a view expressed, for example, by Francis J in Shield v Shield [2014] EWHC 23 (Fam):

‘108. I note that there was no FDR in relation to the preliminary issue. Whilst, as been made clear in a number of cases, an FDR will not necessarily be appropriate to the resolution of a preliminary issue, I express the view that consideration should at least be given to the possibility of an FDR prior to the hearing of a preliminary issue. It may well have been the case here that the input of an experienced FDR judge might have helped to save this family from the course which it has taken.’

Fourthly, in cases where the claimant is in the dark, the court should be – and generally is – more willing to entertain amendments to statement of case at a later stage than would be entertained in equivalent civil process. The final hearing (or preliminary issue hearing) and cross examination can be as much an exploratory – inquisitorial – process, as well as a straightforward challenge to pleadings and written evidence. This is consistent with the inquisitorial duty of the court (which, as argued above, exists notwithstanding the third-party status of the intervenor). New points arising are likely to be dealt with flexibly provided the overall process is fair to each party. An example comes in Michael v Michael (No 1) [2024] EWFC 463, in which HHJ Hess allowed a late amendment over the course of a final hearing as follows:

‘95. The wife’s Points of Claim, though undated, appear in the bundle (2C-4). It is a feature of this pleading that, of the two Declarations of Trust bearing the date of 21st December 2009, the wife’s case was that the MBL Trust was either a sham or had been superseded by the 2017 Declaration of Trust; but the MBP Trust was “of recent invention intended to bolster the husband’s case in these proceedings” (2C-6). Mr Pocock wishes to amend the pleading to enable him to assert that both the documents bearing the date of 21st December 2009 were of recent invention intended to bolster the husband’s case. Mr Buttimore and Mr Wagstaffe have objected to this proposed amendment, but I have decided to allow it. I accept Mr Pocock’s submission that, for the wife trying from the darkness to work out what the husband has been doing, this has been a developing picture and she should not be penalised for wishing to hone her case in the light of developing evidence. Further, Mr Pocock made it clear at the outset of the trial and during cross-examination that this was his case, i.e. that the whole meeting of 21st December 2009 was invented, and I can identify no prejudice to the other parties from allowing this amendment. I heard from all the people who were present at the alleged meeting of 21st December 2009 and their cross-examination by Mr Pocock (in my view, despite Mr Buttimore’s suggestions to the contrary) made it clear what Mr Pocock’s case was. Indeed, as the case has developed this has really become his primary point on the MBL issue – that both the 2009 documents were fakes of recent invention and the other parties were well aware of that and responded to it in submissions and in their own examination of witnesses.’

Appeal against this decision was unsuccessful.

The Family Court has recognised for itself the width of its procedural powers and strictures when dealing with intervenors – even in the cases more oft-quoted for their emphasis on the exact equivalence of the law between the Family Court and elsewhere. See for example [23] of A v A (above):

‘23. The deputy judge recorded, at para [35], the complaint of counsel in that case that the issues had never been “properly defined, pleaded or particularised” and went on to suggest, at para [36], how such issues should in future be handled by way of appropriate case management. I am sympathetic to the approach being suggested by the deputy judge, though I would not wish to be quite so prescriptive as he appears to be. Vigorous judicial case management in such cases is vital, but the appropriate directions to be given in any particular case must reflect the case managing judge’s appraisal of how, given the forensic realities of the particular case, the issues can best be resolved in the most just, effective and expeditious manner.

24. I do, however, entirely share the deputy judge’s view that directions should normally be given for such issues to be properly pleaded by points of claim and points of defence. In the present case the muddle confusion and ambiguities in the wife’s case would have been more pitilessly exposed, and at a much earlier stage in the proceedings, had the presentation of her case been exposed to the intellectual discipline which is one of the advantages of any system of pleading. Moreover, if the wife had been required to plead her case everyone would have had a much clearer idea, and at a much earlier stage, as to exactly what she was or was not asserting and as to exactly what the husband and the interveners were or were not saying by way of defence. As it was, matters were wholly unclear even as late as the first day of the final hearing.’

The width Munby J alludes to might be compared to the freedom to issue a claim under either ‘Part 7’ (pleadings for complex or contested cases) or ‘Part 8’ (witness statement for straightforward or undisputed matters) in civil process.

In Fisher Meredith v JH and PH [2012] EWHC 408 (Fam), [2012] 2 FLR 536 in which Mostyn J, at [42]–[44] set out the various ‘routes’ for establishing who the onus lay upon in a case for seeking joinder. It is interesting that the case discusses the situation whereby the claimant does not need to join a party to make good their claim – as they did not need to ‘bind’ the third party (as there is sufficient money to meet her claim without the joinder and the ‘finding of fact’ against the respondent is sufficient for the court’s purposes):

‘50. That is not to say that the claimant may wish to take this step herself. It would depend on how her claim is framed. Let me give an example. Say that there are assets worth £500,000 in the names of the parties about which there is no dispute that they are beneficially owned by the parties (Pool A), and a further £500,000 of assets in the name of the respondent but which he says is owned by his uncle (Pool B). The claimant might take the view that she is not going to go to the expense of joining the uncle, but will rather argue, in reliance on the starting point or prima facie position, in a trial between her and the respondent alone, that Pool B beneficially belongs to the respondent. Assume further that the uncle does not exercise his undoubted right to apply to intervene. The court is obliged to decide in the exercise of its statutory inquisitorial function under s 25(2)(a) of the MCA which assets belong to the respondent. It decides on the evidence, giving due weight to the starting point, that Pool B belongs to him alone and awards all of Pool A to the claimant on the application of the equal sharing principle. Certainly, the finding that Pool B belongs to the respondent does not bind the uncle, but it certainly binds the respondent. The claimant can collect her full award from Pool A without any difficulties involving the uncle.

51. In this scenario it can be seen that there is no reason for the claimant to join the uncle. Further, a FDR can certainly take place without the uncle being a party, the court giving its early neutral evaluation as to the ownership of the assets of the parties on the evidence before it.’

Instead of joinder the court could just hear their evidence. That approach, as practitioners will be familiar with, is often a good deal less ‘formal’ in practice than a formal joinder – e.g. simply being tried on witness statements without pleadings. This is not necessarily a logical distinction to draw given the consequences for the parties are equally serious either way – and the case in either scenario requires making out to a recognisable standard which is best done with the ‘intellectual discipline’ of pleading (to quote A v A (above) at [24]) – but is perhaps explicable having regard to the overall resources of the parties, the complexity or otherwise of the underlying issue, and the costs involved of the additional work.

Whilst therefore each division must apply the same law, their procedural difference can be flexible to the circumstances of their subject matter. For example, in determinations of beneficial interest under s 10A Proceeds of Crime Act 2002, the criminal courts do not have any procedural rules as to how to manage the beneficial interest dispute they are empowered to hear. The lodestar is instead ensuring fairness. The Court of Appeal has considered this in R v Ruto [2021] EWCA Crim 1669:

‘17 … The principle to be borne firmly in mind in our judgment by a judge when considering a disputed issue under s.10A of the 2002 Act can be found in para.12 of the decision of this court in Forte and Anor v R [2020] EWCA Crim 145, a decision given on 4 November 2020. Paragraph 12 reads as follows:

“The lack of a prescriptive procedural structure means that judges dealing with the determination of the property rights of non parties to confiscation proceedings under s10A of the Act will be careful to ensure that the procedures adopted are fair and enable an accurate determination of the issue. Article 6 of the EHCR applies to protect the fair trial rights of such people.”

18 This principle extends beyond procedural fairness in our judgment. The court must also clearly be careful to apply the relevant law properly and to explain any decision to deprive a third party of property which he or she claims to own clearly. This does not mean that it is necessary in every case to give a long and complex ruling. It is not necessary to mention every piece of evidence or every point which has been argued. It is however necessary to make clear findings of fact and to explain why they were made.’

A similar observation can be made here. The different process that the family courts adopt towards the case management and hearing of intervenor claims is a product of the different circumstances in which those disputes arise, and not (necessarily) a product of the jurisdiction’s failure to ‘catch up’ with civil process elsewhere (although surprise might be expressed at the absence of costs budgeting intervenor cases, given the oft-expressed concern the Family Court has about the costs spending of parties in these disputes).

The flexible process that has grown up over the case management of such disputes is – provided the court is left in a position to fairly determine an intervenor dispute according to the general law of property at the end of it – both legitimate and sensible.