Response to the Family Procedure Rule Committee – Procedural changes relating to applications for a financial remedy
Responses to consultation questions
Question 1: Do you consider that there is any risk of a party (including an overseas party) being disadvantaged through procedural delinking, in that there is a risk of a failure to make a separate financial order application resulting from the removal of the ability to make such an application in the divorce petition or dissolution application?
Yes. If de-linking occurs and no financial remedy application is made prior to remarriage the Petitioner is disadvantaged by reason of his or her remarriage as he or she cannot then pursue capital claims as now.
The Respondent would be unaffected.
The issue then becomes one as to whether the current position is discriminatory in favour of the Petitioner or whether the Petitioner protection in the current position may possibly have arisen out of the historic situation in which the Petitioner was also most frequently the claimant and needed such protection.
We know that the right to pursue an application to judgment does not exist beyond the death of the Respondent (Harb v Aziz) so de-linking has no effect on that.
We note para 9.4(2) – from the application to the FDA will be a minimum of 6 weeks later (fast track timetable). That 6 week period is more than enough time for the status of the divorce to have
changed, possibly irrevocably and to the disadvantage of the financially weaker party.
In terms of cases including an overseas party, our answer is also yes, there is a risk of that party being disadvantaged by delinking. The issuing of the divorce petition secures the petitioner’s legal
position, including the ability to apply for a financial remedy, albeit that there may be no need for there to be a contested financial remedy application where agreement can be reached through negotiations or otherwise. If the two were de-linked, this is likely to lead to greater hostility, increased costs and greater use of court time, as securing jurisdiction through the petition is less contentious than invoking the court timetable for a financial remedy application and therefore cases are more likely to settle in the current system at any early stage without judicial intervention.
We believe that in cases with an international element, de-linking may create more confusion and complication around jurisdictional issues and outcomes uncertain. We have annexed at A some of the possible consequences to consider. We would be happy to contribute to further considerations of how some of these consequences might be avoided, for example, about how to ensure the divorce remains the commencing action for the purposes of jurisdiction and whether there should be a timeline by when any financial applications will need to be made in certain circumstances, (with a process for leave to appeal out of time).
Question 2: If you have answered “Yes” to Question 1, do you consider that this risk can best be mitigated through comprehensive revision of guidance notes for applicants in matrimonial and civil partnership proceedings and of relevant online content on gov.uk?
No, certainly not entirely.
Educational material to explain the need to make a separate application would not be unhelpful, but putting it in the notes assumes that the self-represented applicants will read, understand and retain an understanding of the notes until it might be necessary later to make a financial remedy application. The position of respondents also needs to be considered.
For overseas parties, the idea that the divorce does not in itself mean that no other application can be made in future may be harder to displace when comparing it to the law of the country they live in.
It would seem to us to be inadvisable to rely on applicants reading and understanding notes or guidance to protect against the failure to make an application. Arguably the prayer contained in the existing petition is not necessarily helpful in enabling the self-representing (in particular) to understand their ability to pursue any financial remedy, but there must be some advantage at least in all their divorce-related issues being under one umbrella. The process should give warnings to both parties throughout the process that they need to consider whether to make a separate application for a financial remedy before a final decree / order is made, or that there is a risk of the opportunity being lost. A highlighted warning or notice on the divorce and dissolution application forms (which the applicant should be warned to read and confirm understood before signing), the acknowledgement of service (this is the only document most respondents will complete so again s/he should be warned to read the warning and confirm understood before signing), on the decree absolute application, and on the decree absolute and dissolution final order templates would be advisable. Online court processes should build in and provide an opportunity to provide such warnings.
Question 3: If you have answered “No” to Question 2, do you consider that this risk can best be mitigated through the introduction of a new form of protective application?
We are concerned about the proliferation of court forms and query whether this new form is necessary. It would still be possible, for example, to file Form A and adjourn the financial remedy procedure to allow negotiations to take place. If the dissolution court office is going to deal with such a notice, why can’t they deal with Form A – even if only by transferring it off to another Court?
Allowing for a protective application could increase the risk of conflict between the parties increasing costs and legal uncertainty.
We would also be concerned if there was to be an additional fee charged to court users for filing any such form.
Question 4: Do you consider that the threshold of £25,000 for allocating a financial remedy case to the proposed fast-track procedure is appropriate?
In light of the s.25 discretionary exercise, we don’t consider it is appropriate or helpful to equate financial remedy applications where there are limited financial resources and/or debts, with civil small claims. The former are more complex and outcomes more variable and may not be suitable for fast-track procedure. There can also be issues around where to pitch an application, including where there are different views on the real value of assets; the impact of subsequent disclosure; and not all applications are about a capital sum. In a case where there are significant disclosure issues, this approach could be open to abuse.
There may well be other issues which make the case complex internationally and more appropriate for a standard procedure.
Question 5: If you have answered “No” to Question 4, what do you regard as an appropriate threshold?
Any threshold would be arbitrary. There should be no arbitrary asset-value threshold. The issues can be complex and often the complexity of a family dispute is not determined by the value of assets (or debts) involved. The value of assets is not always agreed and there are enough examples of lowvalue/debts cases that may not be appropriate for fast-track procedure. The underlying factual matrix may, for example, involve considerable financial support from other family members or reliance entirely on the income of a high earner.
Again, there may well be other issues which make the case complex internationally. Where the first appointment is an FDR, that is effectively a fast-track procedure for non-complex
cases in any event.
There are various other points we would like to raise:
- If the Respondent is seeking a pension sharing order, s/he will be vulnerable to the decree being made absolute before the pension sharing order has taken effect. Accordingly s/he could fall into the unenviable position of neither being the pension holder’s spouse nor capable of enforcing the pension sharing order if the pension holder dies post decree absolute and before the order has taken effect.
- There could be other issues which a potential pension beneficiary would want to have regard to in relation to the decree being made absolute, such as being able to enforce a lump sum or property adjustment order. Those capital orders are generally more common and likely to be made than pension sharing orders.
- Will the issuing of Form A effectively place the dissolution on hold pending DJ authority for it to proceed as there will be no prejudice to either party (effectively a s.10(2) stop, but made
by the court)? It will be necessary for the “national case management system” referred to in the introduction (para 3) to be robust and up to date. It is not the decree nisi / conditional order that is the issue in lost chances, but the final decree. The case management system will not be able to say whether a final decree has been applied for but not yet made unless such an application habitually creates some sort of flag on the system. Conversely, if an application for a financial remedy were to create a flag on the divorce file such that no final decree was made until it could be determined that there was no prejudice, that too would create delay, confusion and (either way) such flags would seem to us undermine the principle of de-linking.
- Both the standard and fast track procedure refer to a financial statement as set out in PD5A – either Form E or Form E1. It is suggested that the Rule 9.14(1) should specify Form E for standard cases and Rule 9.19(1) should specify the simpler Form E1 for the fast-track cases. If the Form E1 for fast track applications, this should be an opportunity to look again at that
form, and improve it.
- If the amended Rule 9.18(1)(b)(iii) has been deleted to relieve the Court of the duty to send out a financial statement shouldn’t Rule 9.18(2)(c)(ii) also be deleted to relieve the solicitor who opts to serve of the same duty?
1. More disputes about jurisdiction in cross-border cases (both EU and non-EU) . For example, will the commencement of the divorce process or a financial application be the essential trigger to establish who is first in time in a jurisdiction race if there is an overseas divorce starting at around the same time? This maybe more pertinent in non EU cases but with Brexit approaching this may apply everywhere in due course.
Having said that, it may be considered best practice when dealing with an urgent international case, to issue the divorce and Form A immediately in order to be “belt and braces” and not simply to rely on the financial prayer in the petition. In forum conveniens cases one of the relevant factors is how far the proceedings have reached in each jurisdiction so many practitioners dealing with international cases may issue Form A in tandem with the divorce in any event to show their client’s claims had been advanced as far as possible.
2. More Forum shopping. If parties agree to a divorce in England and Wales or one person starts such proceedings, there is nothing to stop the other from starting financial proceedings in another country, particularly where there is a clear advantage to one party and the intention is to undermine or reduce the claim of the other party. (Again subject to Brussels II revised.)
3. Risk of delay in cases where speed is essential. Having two separate processes (divorce and financial applications) will not assist the need in many international cases, to minimise delay and expedite applications where necessary. Such matters are often complex enough and for those overseas having two entirely sets of proceedings may cause more confusion and potentially risk failure to make an application in time.
4. Competing Statutes. The inter-play with applications under Part III of the Matrimonial Proceedings Act 1984 needs to be considered carefully. There will be a question over whether after a foreign divorce an application has still to be made under Part III or whether now a freestanding application can be made in recognition of the foreign divorce.
5. Inability to make a pension claim. In an overseas case the prejudice to a party in relation to a pension sharing order, if one is not obtained by decree absolute, could have more far reaching consequences. A person living overseas may choose to apply to for a pension sharing order because it is the only resource available in the UK for distribution. They may not be aware that they lose their status as a widow/er on decree absolute and are potentially at risk if their former spouse dies before their application is determined. They are more likely to understand this if the two processes are linked.