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Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
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.
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:
the issue of proceedings in Form A
preparation, filing and service of financial statements in Form E/E1
special considerations in relation to Form E/E1 and pensions
provisions in relation to service of proceedings where a property adjustment order is sought
the issue of standard directions
procedure regarding the first appointment
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:
answer questionnaires and agree on the identity of experts within 28 days
have remaining evidence (expert or otherwise) ready within 56 days
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:
practitioners should be completely clear about the basis on which negotiations are made: The case of Rose v Rose illustrates the difficulties of reaching agreement at FDR if parties are not completely on board
evidence of anything said or of any admission made will not be admissible in any subsequent part of the proceedings, except at the trial of a person for an offence committed at FDR or in the very unusual circumstances that there is a real danger to the welfare of a child.
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:
a consent order should be drawn up, and
the order should be submitted to the court together with a joint letter by both sets of solicitors and an application made (within that letter, rather than formally) to vacate the 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.
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.
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