Practice and procedure - overviewJurisdiction in financial proceedings

The court has jurisdiction to entertain proceedings for financial provision under the Matrimonial Causes Act 1973 (MCA 1973) and the corresponding provisions of the Civil Partnership Act 2004 (CPA 2004) if a petition for divorce or dissolution of civil partnership has been presented to that court. Other types of financial proceedings, including cohabitant claims, and claims under the Child Support Act 1991 are dealt with elsewhere in this service. In some circumstances proceedings may be transferred to a higher court or horizontally.

The duty of disclosure in financial proceedings

There is an absolute duty on parties and their advisors to disclose their assets in a full, frank, clear and up-to-date manner. This duty continues throughout proceedings: if a party knows that their financial situation has changed, they must inform the other party and the court at the earliest opportunity.

If a party does not give adequate disclosure, the court may well make costs orders against them. If they still refuse to provide the disclosure requested, the court is entitled to make adverse inferences against the non-disclosing party. Orders made against a backdrop of faulty disclosure can be set aside.

Procedural aspects of disclosure in financial proceedings

None of the above, of course, prevents a party refusing to produce documents which are properly privileged.

Compliance with and requests for disclosure must be time and costs proportionate.

Disclosure of documents is controlled by the Family Procedure Rules 2010 (FPR 2010) .

The first directions appointment (FDA) should represent a one window of opportunity of disclosure and the potential requirement as to expert and / or lay evidence must be considered to enable the court to give appropriate directions. If a party fails to make the request at the FDA they are not entitled to production of any further documents except in accordance with directions given or with permission of the court. If the court considers that the applicant could have and should have made the request at the FDA the request may be disallowed with costs.

Adducing expert evidence in financial proceedings

Consideration should be given to whether orders should be sought for expert evidence at first appointment. There are strict rules governing the use of expert evidence in proceedings with which practitioners must comply.

Joint instruction of experts in financial proceedings

Pt 25 of FPR 2010 and PD 25A set out in detail the provisions in relation to the joint instruction of experts in financial proceedings.

Interlocutory steps

FPR 2010, PD 9A sets out the pre-application protocol in its annex. It is similar in form to the protocols set down for general civil litigation, involving a neutrally phrased first letter (the equivalent of a letter before action) and provisions for disclosure

The procedure for all applications in ancillary relief is set out in the FPR 2010 and includes provision in relation to:

Follow-up action after first appointment

The court will make orders at the first appointment, which should be attended to as soon as is reasonably practical. Typically, the parties will be expected to:

Preparation for the financial dispute resolution appointment

Good practice suggests that all answers to questionnaires and relevant evidence should be ready not less than 21 days before the financial dispute resolution (FDR) appointment.

Conduct of the FDR

FPR 2010 set out the purpose of, and the court's powers at, the FDR.

Two important points arise:

Preparation of proposals for settlement

It is good practice to make any proposals for settlement in good time prior to the FDR to enable a response to be made and the issues narrowed.

Any without prejudice offers to settle and responses thereto must be filed with the court not less than seven days before the FDR.

Costs implications of proposals for settlement

If no proposals for settlement are forthcoming at the FDR, the judge may be unable to give a proper indication: the purpose of the FDR is frustrated and the party who has failed to produce a proposal may be at risk on costs.

Preparation for final hearing

The procedure at final hearing is set out in FPR 2010 .

FPR 2010, PD 27A which incorporates the Practice Direction: Family Proceedings : Court Bundles (Universal practice to be applied in all courts other that the family proceedings court, sets out in detail the material that should be prepared for the court. Its provisions are being enforced with greater vigour, with failure to comply resulting in costs penalties.

Action upon reaching agreement prior to final hearing

If agreement is reached prior to final hearing:

Evidential issues for final hearing

At final hearing it is likely that each party’s position will be tested in oral evidence. Practitioners should ensure that their clients are fully apprised of the position and language adopted in Form E/E1 and other written evidence.

Practice directions

Two key directions setting out the pre-application protocol for applications for ancillary relief and the procedure in relation to the contents and filing of court bundles are set out in FPR 2010, PD 9A and PD 27A respectively.