John Bolch: I never had the Latin

“Yes, I would have liked to have been a judge, but I never had the Latin. I never had sufficient Latin to get through the rigorous judging exams.” So said the late great Peter Cook at the beginning of his wonderful Miner sketch. I know how he felt – Latin O-level was the only serious exam I ever failed.

I didn’t, however, become a miner. Undeterred by my lack of Latin I still pursued a career in law. I can’t say that my inability to converse in ancient Rome held me back, although there were certainly times when it would have been useful, particularly in the early days.

One would have thought that with all the efforts at modernising and simplifying the law Latin expressions would, like the use of the language itself, by now have been confined to the dustbin of history. Not so. Just this morning I picked up a family law textbook and, opening it at random, was confronted by the definition of three Latin expressions, the understanding of which is considered essential by the authors.

So, just what Latin expressions do family lawyers persist in using? Well, quite a few, as it happens. Here, for your delectation (and education) are some of the most common:

ab initio – ‘From the beginning’ (quite why lawyers can’t use that perfectly adequate English phrase, I’m not sure). In the family law context, it is used to refer to marriages that were void ab initio, i.e. from the outset, as against marriages that were initially valid, but only subsequently made void.

a mensa et thoro – Literally means ‘from table and bed’, graphically referring to a legal separation from those things. Divorce a mensa et thoro was dealt with by the ecclesiastical courts and was replaced by ‘judicial separation’, although the old term still crops up from time to time – see, for example, the 2002 case Allan v Clibbery.

ex parte – A commonly used expression referring to applications by one party only. Obviously, with most applications to the court the respondent should be notified and given an opportunity to attend the hearing of the application. However, certain (usually urgent) applications can be dealt with ex parte. Perhaps the most common in the context of family law are domestic violence injunctions, were the party applying requires protection before the other party is notified of the application (that party will then get a chance to put their case at a subsequent hearing).

forum conveniens – A term used in jurisdiction disputes over which country’s law should apply to a dispute. The forum conveniens is the country that is most suited to hear the dispute (just as the forum non conveniens is a forum that is not convenient).

guardian ad litem – Another very common term, referring (in the family law context) to a guardian appointed by the court to represent the interests of a child.

in camera – The cause of much controversy in family and Court of Protection cases. The term literally means ‘in a chamber’, but refers to hearings conducted in private or, as some would say, in secret. In recent times there have been moves to reduce the number of cases held in camera.

in loco parentis – ‘In the place of a parent’. A term that is in general usage, and refers to anyone who assumes the responsibilities of a parent for a child, for example a teacher at a school.

inter alia – Another common one, that I’m often guilty of using myself. It means ‘among other things’. For example, where a court can make several types of orders, such as in financial remedy applications, one might say that ‘the court can, inter alia, make a lump sum order’. The term is also used in non-legal contexts.

lex fori – Another one used in jurisdiction disputes. The term refers to the law of the forum, or state, where the action is brought.

lis pendens – Again used in jurisdiction disputes, this time referring to a ‘suit pending’ in another jurisdiction.

nisi – Means simply ‘unless’, and refers to a decree that is not final unless some condition is met. Accordingly, a decree nisi of divorce is not final unless it is made absolute. In civil partnership dissolution proceedings the decree nisi is called a ‘conditional order’.

pendente lite – ‘Pending the litigation’. I can’t say I’ve actually come across this one myself, but it can refer to temporary court orders that are made pending the final outcome of the proceedings, such as orders for maintenance pending suit.

sine die – Another one in common usage by all lawyers involved in litigation. It literally means ‘without day’, and refers to adjournments of cases where the court does not fix another hearing date, thus: ‘adjourned sine die’.

stare decisis – This term means ‘let the decision stand’, or something similar. It refers to the very important principle of precedent, i.e. where courts are bound by earlier decisions, save for decisions of inferior courts.

ultra vires – Means ‘beyond the powers’ and refers to anything that is done by a body (including a court) that was beyond its power to do. Accordingly, for example, anyone affected by a decision that was made ultra vires can challenge that decision and have it set aside.

I’ll stop there, but I could go on, as the deeper I look the more expressions I find that are still being used. Perhaps those who have the temerity to want to be lawyers should still study that Latin after all…