1997 No. 1056 (L.24)
SUPREME COURT OF ENGLAND AND WALES
The Family Proceedings (Amendment No. 2) Rules 1997
24th March 1997
Laid before Parliament
24th March 1997
Coming into force
21st April 1997
We, the authority having power under section 40(1) of the Matrimonial and Family Proceedings Act 1984(1) to make rules of court for the purposes of family proceedings in the High Court or county courts, in the exercise of the powers conferred by the said section 40, hereby make the following Rules—
Citation, commencement and interpretation
1.—(1) These Rules may be cited as the Family Proceedings (Amendment No. 2) Rules 1997 and shall come into force on 21st April 1997.
(2) The Family Proceedings Rules 1991(2) shall be amended in accordance with the following provisions of these Rules and, in those provisions, any reference to a rule or Appendix by number alone shall be construed as a reference to the rule or Appendix so numbered in the said Rules of 1991.
2. Rule 2.28(1) shall be amended by substituting, for the words “the Civil Evidence Act 1968”, the words “the Civil Evidence Act 1995(3)”.
3. Rule 2.31 shall be revoked.
Ancillary Relief pilot scheme
4. After Rule 2.70 there shall be inserted the following new rules—
“Ancillary relief procedure for specified courts: pilot scheme
2.71.—(1) The procedure under Rules 2.72 to 2.77 shall apply to any ancillary relief application and to any application under section 10(2) of the Act of 1973(4) where notice of the application or notice of intention to proceed with the application for ancillary relief made in the petition or answer is filed in proceedings which are pending
(i)in the principal registry,
(ii)in one of the divorce county courts listed in paragraph (2), or
(iii)in the High Court in a district registry which is mentioned in paragraph (2).
(2) The courts referred to in paragraph (1) are—
(3) In proceedings to which the procedure under Rules 2.72 to 2.77 applies, these Rules shall apply with the following modifications:
(a)Rules 2.45(2), (3), 2.58(2), (3), 2.59(1), 2.62(1), 2.62(3), (5), (6), 2.63 and 2.70(1) shall not apply;
(b)Rule 2.55 shall apply with the omission of the words after “proceeding”;
(c)Rule 2.58(1) shall apply subject to Rules 2.72 to 2.77;
(d)Rule 2.60(1) shall apply
(i)with the omission of the words from “A person” to “opposite party and”, and
(ii)with the substitution, for the words “within seven days of service of the affidavit on him”, of the words “within eight days of service of the notice on him”;
(e)in Rules 2.60(1) and 2.66(4), for “Rule 2.62(5)” there shall be substituted “Rule 2.74(3)”; and
(i)Form M11 or M13,
(either alone or in conjunction with a rule) shall be construed as references to Form A, B or F respectively in Appendix 1A to these Rules and those forms shall be used with such variation as the circumstances of the particular case may require instead of Form M11, M12, M13 or M14.
References in these Rules to a rule which is modified by this rule shall be read as a reference to the rule as so modified.
(4) The procedure under Rules 2.72 to 2.77 shall apply to
(a)proceedings to which the President’s Practice Direction of 25th July 1996 applied which were commenced before Rules 2.72 to 2.77 came into force and steps taken under that Direction shall be treated as if they had been taken under Rules 2.72 to 2.77;
(b)proceedings which are transferred to the principal registry or to one of the courts listed in paragraph (2) subject to any directions given by the court to which the proceedings are transferred.
(5) Where proceedings to which the procedure under Rules 2.72 to 2.77 applied are transferred to a court which is not listed in paragraph (2), steps taken under those rules shall, so far as practicable and subject to any directions given by the court to which the proceedings are transferred, be treated as if those rules had not come into force.
Ancillary relief procedure
2.72.—(1) (a) A notice of intention to proceed with an application for ancillary relief made in the petition or answer; or
(b)an application for ancillary relief;
shall be made by notice in Form A in Appendix 1A.
(2) Where an order for ancillary relief is sought that includes provision to be made by virtue of section 25B or 25C of the Act of 1973(5) the terms of the order sought must be specified in the notice in Form A in Appendix 1A.
(3) An application to which Rule 2.45 applies shall be made by notice in Form B in Appendix 1A.
(4) Upon the filing of a notice in Form A or Form B—
(a)the court shall allocate a first appointment not less than 10 weeks and not later than 14 weeks after the date of the filing of the notice and give notice of that date;
(b)the person making the application (“the applicant”) shall serve a copy on the respondent to the application (“the respondent”) within 4 days of the date of the filing of the notice.
(5) The date fixed under paragraph (4) for the first appointment, or for any subsequent appointment, shall not be vacated except with the leave of the court and, where such a date is vacated, the court shall forthwith fix a fresh date.
Notice in Form E
2.73.—(1) Not less than 35 days before the date of the first appointment the applicant and respondent shall simultaneously exchange with the other party and each file with the court a statement in Form E in Appendix 1A which
(a)is signed by him;
(b)is sworn to be true, and
(c)contains the information set out in paragraph (2).
(2) The information referred to in paragraph (1) is—
(a)the party’s full name, age, date of birth and occupation;
(b)the party’s state of health;
(c)the dates of marriage and separation of the parties;
(d)the full names and dates of birth of any children of the family, and the name and address of the person with whom they live;
(e)details of the party’s present residence and the occupants thereof;
(f)a concise statement of the party’s means including
(i)his income and earning capacity,
(ii)the value of all his assets and liabilities,
(iii)the benefits under any pension scheme that he has or is likely to have with the most recent valuation (if any) furnished by the trustees or managers of the pension scheme pursuant to regulation 5 of, and Schedule 2 to, the Occupational Pension Schemes (Disclosure of Information) Regulations 1996(6), or paragraph 2(b) of Schedule 2 to the Personal Pension Schemes (Disclosure of Information) Regulations 1987(7), or regulation 4 of the Divorce etc. (Pensions) Regulations 1996(8); and
(iv)any other resources (including any resources that he may receive in the foreseeable future such as by way of inheritance), and, where an insurance policy is included, its current surrender value and date of maturity;
(g)a concise statement of any loss of widow’s or widower’s pension that would be suffered by either party following a divorce;
(h)a concise statement of the present and future reasonable needs of himself and any children of the family;
(i)details of the present and proposed educational arrangements for any children of the family;
(j)details of any child support maintenance assessment made by the Child Support Agency, or of any agreement for child maintenance made between the parties;
(k)a brief description of the standard of living enjoyed by the parties during the marriage;
(l)whether either party has made a relevant contribution (within the meaning of section 25(2)(f) of the Act of 1973) and, if so, a concise statement of that contribution;
(m)whether the other party’s conduct (financial or otherwise) during the marriage is considered to be relevant, and if so, a concise statement of the issues of conduct relied on;
(n)any other circumstances which he considers could significantly affect the extent of financial provision to be made for the applicant or any child of the family.
The statement shall annex only such documents as are necessary to explain or clarify any of the above information.
(3) After the filing of the application for ancillary relief but before the first appointment, no discovery of documents shall be sought or given except
(a)insofar as documents have been annexed to the statement filed under paragraph (1); or
(b)in accordance with paragraph (4) below.
(4) Not later than 7 days before the hearing of the first appointment, each party shall file and serve on the other party—
(a)a questionnaire setting out any further information sought from the other party;
(b)a schedule setting out any documents sought from the other party;
(c)a concise statement of the issues between the parties;
(d)where an order for ancillary relief is sought that includes provision to be made by virtue of section 25B or 25C of the Act of 1973, confirmation that the trustees or managers of the pension scheme in question have been served and provided with the specified information in accordance with Rule 2.70(4),
and the party who served the notice in Form A in Appendix 1A shall confirm that all relevant persons have been served in accordance with rule 2.59(3) and (4).
The First Appointment
2.74.—(1) The first appointment shall be conducted with the objective of defining the issues and saving costs and the district judge
(i)the extent to which any questionnaire filed under Rule 2.73 shall be answered, and
(ii)what documents requested under Rule 2.73 shall be produced,
and give directions for the production of such further documents as may be necessary;
(b)shall give directions as to
(i)the valuation of assets (including, where practicable, the joint instruction of independent experts) and
(ii)obtaining and exchanging experts’ evidence (including the holding of meetings of experts);
(iii)any evidence sought to be adduced by each party and as to any chronologies or schedules to be filed by each party;
(c)shall (unless he decides that a referral is not appropriate in the circumstances) direct that the case be referred to a Financial Dispute Resolution (“FDR”) appointment;
(d)shall, where he decides that a referral to a FDR appointment is not appropriate, direct that
(i)a further directions appointment be fixed; or
(ii)an appointment be fixed for the making of an interim order;
(iii)the case be fixed for final hearing and, where such a direction is given, the district judge shall determine the level of judge before whom the case should be heard; or
(iv)the case be adjourned for out-of-court mediation or private negotiation or in exceptional circumstances generally;
(e)shall consider whether, having regard to all the circumstances (including the extent to which each party has adhered to the rules), to make an order as to the costs of the hearing;
(i)in a case of urgency, make an interim order;
(ii)with the consent of both parties, treat the appointment (or part of it) as a FDR appointment to which Rule 2.75 applies;
(iii)in a case where an order for ancillary relief is sought that includes provision to be made by virtue of section 25B or 25C of the Act of 1973, require any party to request a valuation under regulation 4 of the Divorce etc. (Pensions) Regulations 1996 from the trustees or managers of any pension scheme under which the party has, or is likely to have, any benefits.
(2) After the first appointment, no party shall be entitled to seek further discovery of documents except in accordance with directions given under paragraph (1)(a) above or with the leave of the court.
(3) At any stage—
(a)a party may apply for further directions or a FDR appointment;
(b)the court may give further directions or direct that the parties attend a FDR appointment.
(4) Both parties shall personally attend the appointment unless the court otherwise orders.
The FDR Appointment
2.75.—(1) The FDR appointment shall be treated as a meeting held for the purposes of conciliation and the following provisions shall apply—
(a)the district judge (or judge) hearing the appointment shall have no further involvement with the application, other than to conduct any further FDR appointment;
(b)not later than 7 days before the appointment the applicant shall file details of all such offers and proposals and responses to them and, at the conclusion of the appointment, any documents containing the same or referring thereto shall be returned to the applicant or respondent (as the case may be) and not retained on the court file;
(c)parties attending the appointment shall use their best endeavours to reach agreement on relevant matters in issue between them;
(d)the appointment may be adjourned from time to time, and at the conclusion thereof the court may make such consent order as may be appropriate, but otherwise shall give directions for the future course of the proceedings, including, where appropriate, fixing a final hearing date.
(2) Both parties shall personally attend the appointment unless the court otherwise orders.
2.76. At every court hearing each party shall produce to the court a written estimate of the solicitor and own client costs incurred up to the date of that hearing.
2.77.—(1) Not less than 14 days before the date fixed for the final hearing of an application for ancillary relief, the applicant shall (unless the court directs otherwise) file and serve on the other party to the application an open statement which sets out concisely the nature and amount of the orders which he proposes to invite the court to make.
(2) Not more than 7 days after service of a statement under paragraph (1) above, the respondent shall file and serve on the applicant an open statement which sets out concisely the nature and amount of the orders which he proposes to invite the court to make.”.
5. After Appendix 1 there shall be inserted, as Appendix 1A, Forms A, B, C, D and E in the Schedule to these Rules.
6. The definition of “proper officer” in Rule 1.2(1)(9) shall be amended
(a)by substituting, for the words “chief clerk of the family proceedings department”, the words “family proceedings department manager”;
(b)by substituting, for the words “chief clerk”, the words “court manager”.
7. Rules 3.13(4) and 7.7(2)(10) shall be amended by substituting, for the words “chief clerk of the family proceedings department”, the words “family proceedings department manager”.
8. Rule 4.23 shall be amended by inserting, after paragraph (2), the following new paragraph—
“(3) Nothing in this rule shall prevent the disclosure of a document prepared by a guardian ad litem for the purpose of—
(a)enabling a person to perform functions required by regulations made under section 41(7);
(b)assisting a guardian ad litem or a reporting officer (within the meaning of section 65(1)(b) of the Adoption Act 1976(11)) who is appointed under any enactment to perform his functions.”.
Mackay of Clashfern, C.,
Stephen Brown, P.,
Susan P Darwell-Smith,
M B Roddy
Dated 24th March 1997
(This note is not part of the Rules)
These Rules amend the Family Proceedings Rules so as—
(a)to make consequential amendments following the enactment of the Civil Evidence Act 1995 (rules 2 and 3);
(b)to introduce (in exercise of the powers conferred by paragraph 3 of Schedule 2 to the Civil Procedure Act 1997) a new procedure for applications for ancillary relief brought in certain specified courts (rules 4 and 5);
(c)to reflect the change in name of chief clerk (rules 5 and 6); and
(d)to relax for specified purposes the requirements for confidentiality in respect of the report of a guardian ad litem (rule 7).
1984 c. 42; section 40 was amended by the Courts and Legal Services Act 1990 (c. 41), Schedule 18, paragraph 50 and the Civil Procedure Act 1997 (c. 12), Schedule 2, paragraph 3.
S.I. 1991/1247; the relevant amending instruments are noted in footnotes to provisions in the body of the instrument.
1995 c. 38.
The Matrimonial Causes Act 1973 (c. 18).
1973 c. 18; sections 25C and 25D were inserted by the Pensions Act 1995 (c. 26), section 166(1).
Rule 1.2 has been amended by S.I. 1992/2067 and 1993/295.
Rule 7.7 has been amended by S.I. 1994/2890.
1976 c. 36.