Or… the Devil’s Dictionary

The Ministry of Justice has decided, with effect from 6th April 2011, to make some changes to the way in which the Family Courts and family lawyers operate.  The intention is to bring the rules used in the Family Court closer to those used in the Civil courts.   The changes are not just in procedure but also in the language that is to be used.

The terms and words below are those used by lawyers and the courts that may have found their way into your lawyers’ letters or court orders and you have been too scared to ask what they really mean.  (How much is it going to cost me to ask my solicitor that simple question when I won’t even understand the reply?)

So here is a friendly guide to the  family legal lexicon that I will update from time to time:

 

Affidavit – Stop right there. You can’t use this word anymore to denote a document of complete and utter truthfulness that you have been SWORN to and filed at the court. Instead, you will now VERIFY that your STATEMENT is true. This is called progress.

Ancillary Relief – the meaningless name given to the types of financial orders the family court can give to assist the parties before it. E.g. a lump sum order. Specifically only given within divorce proceedings. After April 6th, 2011, should be called Financial Relief instead.

Beneficial Joint Tenancy – This means that you own the property jointly and neither of you can point to a specific share in the property.  You will both need to consent to a sale or a re-mortgage.  Most importantly, you cannot leave instructions to a lawyer to pass on your interest in a beneficial joint tenancy under your Will.  This means that when you die, your interest in the property passes automatically to your fellow joint owner or owners. See also: Tenants in Common and Notice of Severance

Capital Equivalent (CE) value (aka – Capital Equivalent Transfer Value (CETV): this is the value, expressed as a lump sum, of the money held by your pension provider to fund your pension income in the future. The somewhat artificial process is to calculate how much the pension capital value would be worth if it had to be paid to you as a lump sum in the immediate future (which it won’t be) but this figure can then be used by lawyers and financial advisers to work out how much pension share or earmarking order to ask for.

Ex Parte Orderthis means the Order was obtained by one person from the Court without the other person affected by it even being aware that the Court was going to make the order in the first place. This should only happen in cases of emergency such as the physical welfare of one person (an injunction to prevent physical attack). Strictly speaking, this term is frowned upon and any lawyers using it should be smacked across the wrist. See: Without Notice Order

Financial Orders or Relief – used to be called Ancillary Relief. The types of financial orders the family court can give to assist the parties before it. E.g. a lump sum order. Specifically only given within divorce proceedings.

Freezing Order – as in: Asset Freezing Order, or even more grandly, Worldwide Asset Freezing Order. This has the effect, as you may have guessed, of freezing the assets of your opponent, whether funds in a bank account or shares, and so on, so they cannot use them without your agreement or a further order of the Court. Usually granted on a without notice basis (you sneak into court without telling your opponent) so you can freeze the assets because you think they will probably disappear if you gave notice of your actions. This type of order used to be called a Mareva and still is when solicitors and barristers don’t think the Judge can hear them.

Liberty to Apply… – usually one of the last sentences at the end of a consent order, as in: “Liberty to apply as to the implementation of the terms of this Order”. The key thing to note is that it does not allow you to vary, or change, what lawyers called the substantive nature of the orders given, but you can apply back to the Court for guidance if certain aspects of the order have not gone according to plan. For instance, if an order has been given to sell a house by a certain date but it cannot go ahead for an unexpected or unforeseen reason it is possible to get the matter back to court for the judge to consider what the problem is and how it may be rectified.

Nominal Payments – as in nominal payments of spousal maintenance or child maintenance. This means the person receiving the money may only be awarded 5 pence per year (in reality, the payment is not made). What is the point of that, you ask? Well, it is still an award of periodical payments and the person receiving the payments is entitled to go back to court to ask for an upwards variation of the payments to something much more meaningful if their circumstances change in the future. In this respect, it could be regarded as a form of insurance policy.

Notice of Severance – A document normally prepared by a solicitor.  Once this document is signed and sent to your spouse it has the effect of ‘severing’ the beneficial joint tenancy and converting it into a tenancy in common.  Then, of course, you will be told to prepare a Will, pronto, to define where your ‘severed’ share in the property should go in the event of your death. See: Beneficial joint tenancy and Tenants in Common

Tenants in Common – You still own the property with your fellow owner but you will both have distinct shares.  This may be 50/50 or 70/30 and so on.  You can sell your share or charge it (raise a mortgage loan on it).  But, if you die, your interest will not pass automatically to your joint owner but will instead go to the person you have named as the beneficiary under your Will.  You can therefore see that it is vital that you have a Will in place if you have a tenancy in common.  If there is no Will, or the Will is deemed to be invalid, there will be an intestacy and your share may go to someone you’d rather not benefit. See also: Beneficial joint tenancy and Notice of Severance

 

Without Notice Order – this means the Order was obtained by one person from the Court without the other person affected by it even being aware that the Court was going to make the order in the first place. This should only happen in cases of emergency such as the physical welfare of one person (an injunction to prevent physical attack. Used to be called (and often still is) an ex parte order.

“Without Prejudice”.  The words sit proudly, perhaps ominously, atop the family solicitor’s letter setting out the latest financial offer in the war of the spouses. I’m often asked what this term means and have therefore added it to my Legal Lexicon.  To lawyers, the term represents a form of legal privilege (there are different forms of legal privilege but I need not go into that here).  What is legal privilege?  Well, imagine your divorce lawyer wants to make a financial offer on your behalf.  If the offer is made in an open solicitor’s letter then this offer can be shown to a judge in any court proceedings.  The offer may be overly generous with a view to bringing proceedings to an end but if the expensive proceedings drag on then it will not be possible to ask the judge to ‘forget’ the terms of your offer.  But if the offer letter is written “without privilege” it is a way of testing the water for settlement without the judge seeing the letter and being influenced by it in the subsequent proceedings. Such ‘without prejudice’ letters can be read by a judge in a special type of hearing called a Financial Dispute Resolution (FDR) hearing when offers can be compared and the judge can comment upon the reasonableness of the settlement positions.  If settlement cannot be achieved at the FDR the same judge cannot then preside over the final hearing (or trial) as otherwise they would remember the ‘without prejudice’ offers and be influenced by them.