The Family Procedure Rules 2010, which are effective from 6 April 2011, are an essential read for solicitors and clients throughout England and Wales because they herald major changes in family law’s procedures and practice. When they come into force there will be just one code, which is intended to modernise and standardise family court practice across the High Court, County Court and Magistrates’ Court.
The new Rules are, however, complex and lengthy. When I decided to bite the bullet and print out what has been published so far, I ended up with three lever arch files crammed with thick wads of paper. I don’t recommend this approach: it is worth noting that what has been published to date may not even be the final version.
Instead, this week I am going to publish a series of posts about the Family Procedure Rules 2010, identifying what I believe to be the most important changes and analysing the likely implications for solicitors and divorcing couples. I don’t intend to cover areas that are not my field, such as public law children cases. My emphasis will be upon finances on divorce.
Monday: Introduction and Overview
Tuesday: The Overriding Objective, ADR / Mediation
Wednesday: Case Management
Thursday: Application for a Financial Remedy
Friday: Children, Miscellaneous Applications, Conclusion and Resources
I would also like to recommend two starting points. The first is this masterly dissection from John Wilson QC, a member of the Rules Committee. Readers may recall that I have previously described this London-based barrister as a “walking brainbox”, and last week he kindly presented his paper to solicitors at Stowe Family Law. We are very grateful to him. Over at Pink Tape, Lucy Reed has made her seminar notes available and plans to post some detailed thoughts shortly.
So what is coming?
The Family Procedure Rules 2010 are split into 36 parts, together with the Practice Directions, certain Pre Action Protocols and a complete set of forms, which together I describe as a code. Put simply, the Family Procedure Rules explain what to do in every area of family law. The Practice Directions explain how to do it and the Pre Action Protocols explain the best way it should be done. Some parts of the code have been changed; others have not.
My overview is as follows. Family law won’t change. We will soon become accustomed to the procedural changes and form-filling. As a practitioner, however, I believe that putting the entirety of this code into practice on behalf of any client, in order to satisfy the new, overriding principle discussed tomorrow, will require considerable skill. It will take skill to achieve a balance between satisfying an understandably emotional and even demanding client, and conducting the case according to the requirements of the code so as not to prejudice the client, who may wish to pursue a more confrontational route than the one that is now clearly laid down.
Practice and procedure in family law will therefore become different in many ways, and perhaps the first major changes that family lawyers will notice will be the use of some different terminology, some different forms to complete and an explanation to the client, in greater detail, of exactly how the matter is going to proceed. I also expect to see some differences in the approach of the judiciary, who are expected to implement the Rules from day one.
Because of the rocky economy and the cuts to legal aid, there is expected to be a significant increase in unrepresented litigants appearing in court. Thus there are going to be easier, “tick box” forms to complete, it will be made easier to gain access to the court and courts will also be adopting a more direct, “hands on” approach to achieve resolution.
As we all become accustomed to the changes there are bound to be frustrations, frayed tempers, annoyed clients and the like. John Wilson suggests that the Family Procedure Rules 2010 “may have rather a bloody birth”. We shall see.
The new terminology
The Family Procedure Rules 2010 have been some six years in the drafting. Major glitches occurred in the courts’ computer software (known as FamilyMan), which could not cope with the new terminology that had been proposed. The government deemed it too expensive to update the FamilyMan software.
As a result, some of divorce’s more archaic terms have had to be retained in the forms. They include petition, prayer, decree nisi and decree absolute, all of which required the forms to be redrafted at breakneck speed. Furthermore there is now only one set of generic forms covering divorce, judicial separation and civil partnership, and the jurisdictional basis on which the petition is founded is removed altogether.
The new Family Procedure Rules do refer to terminology old and new. For example an application for a matrimonial order remains a divorce petition on the form. The Rules refer to an applicant for a matrimonial order, but in the forms the applicant is the petitioner. The Rules retain references to an application for decree nisi and decree absolute. It is difficult to comment further until we see how this works in practice. I expect that for lawyers used to the old language, coping with two sets of terms will not be a problem. Litigants in person should ensure that they are fully aware of the dual terminology, to avoid later confusion. The divorce procedure itself will remain more or less as before.
The sharp eyed will spot that the Practice Directions cover some of the Family Procedure Rules, but not all of them. Even sharper eyes, such as Lord Justice Munby in Traversa v Freddi and Lord Justice Hughes in Goldstone v Goldstone, have already commented on perceived deficiencies within the Rules.
For family lawyers, jurisprudential skills of interpretation of headings, substance, overall meaning and intent are therefore only just beginning. Here is an example: although the court must consider from the outset who are to be the parties to the action, there is no provision for joinder of third parties in the new Rules. So take an example in which a trust is to be joined in. There is an interesting “catch all” at 1.4.3 (o) of the Family Procedure Rules 2010 (page 36), which permits the court to “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”, which presumably covers this point. Purely from a legal perspective, it will be interesting to follow judicial interpretation of that particular subsection!
From tomorrow I will be looking at what I believe to be the most important changes to the Family Procedure Rules, for practitioners and for clients. Tomorrow’s post will examine the new, all-important Overriding Objective, and the increased emphasis upon alternative methods to resolving disputes (known as ADR), including mediation. If the Rules’ relevant Pre Action Protocol is anything to go by, I’m predicting mayhem…