All this week I have been writing about the Family Procedure Rules 2010, examining some of the most important changes for practitioners and clients. Here are the previous posts in this series:
Jurisdiction & divorce
Those who practice in transnational cases are used to considering exactly how clients come within the jurisdiction of the English court, in terms of residence or domicile. They will note that in the new generic application for a matrimonial order (petition), there is no reference at all to jurisdiction.
It is also now clear that naming a third party in a divorce should not be done unless the petitioner believes that the respondent is likely to object to the making of the divorce. Distressed clients who hold a third party responsible for the breakdown of their marriage often wish to name them. Although this has been frowned upon for a long time some courts have still insisted that if the name is known, it should be given. Now it is quite clearly intended that this should no longer happen.
The new adoption rules are incorporated within the Family Procedure Rules 2010. There are rules relating to the representation of children in public and private applications; a section is devoted to violence in the home and its treatment across all the courts, all explicitly and painstakingly set out. There are rules on the implementation of the Hague Convention 1996, rules as to service, evidence, disclosure, conduct of hearings, media presence in the courts (no change). There are rules relating to enforcement of court orders here and abroad, new pension compensation sharing rules and so forth, most accompanied by practice directions.
Together these are the backbone of the family law system, all highly relevant and important, and they all pertain to the correct conduct of family law: what to do, how to do it and how best to do it. Ultimately there is no shortcut or substitute: I recommend that you read them.
Here at Stowe Family Law, one focal point of discussion has been the new forms. Our solicitors have mused upon the style and the new, all-encompassing “divorce/civil partnership/judicial separation petition”. Current petitions are different, and generally it is felt that this confers some dignity upon what is, after all, a solemn legal process. The new form was independently described to me by two solicitors as “Noddy-style”. I question whether it was necessary to dumb it down so heavily.
If the intention is to render divorce no more than a purely administrative process (as per David Norgrove’s Interim Report for the Family Justice Review, which was issued yesterday), then this is an obvious first step towards that goal.
I did smile when I read the Interim Report: if it has taken six years to develop these Family Procedure Rules, and if there are insufficient funds to update family court software, then where are all the resources required to introduce any of the Family Justice Review’s final recommendations going to come from? Cynic that I am, I suspect that many of these proposals will end up on a shelf somewhere gathering dust: another quango, and more wasted time and costs.
On balance, after spending many long hours reading through the Family Procedure Rules 2010, I don’t think that the changes are too bad.
One exception, however, is the requirement for assessment as to suitability for mediation, which I believe is logistically unworkable. It is a pity that such heavy emphasis has been attributed to pre-application assessment, when involvement in mediation is by no means a guarantee of success. It can turn out to be a complete waste of time and costs, particularly in financial cases, if insufficient care is paid to obtaining good legal advice and ensuring the assets are fully disclosed and agreed. A client may turn up at his or her solicitor’s office, clutching a draft agreement – only to discover that it isn’t worth the paper it’s written on. Then they are back to square one, months down the line, with costs rising.
The Government has budgets and financial considerations for the entire country to take into account. It isn’t overly concerned with Mr and Mrs Smith, out in suburbia, getting divorced. Solicitors’ concerns, however, are for the welfare of individual clients; we want to ensure that both Mr Smith and Mrs Smith leave their marriage in full knowledge that it has been done justly – in accordance with the overriding objective.
On a positive note, bearing in mind the welfare issues involved, I’m looking forward to judges proactively exercising their case management powers in order to achieve the overriding objective. It won’t be easy. They are at the coalface, and they probably have the hardest task of all: setting the lead.
After 6 April, let’s take stock and see how the Family Procedure Rules 2010 are working in practice.
Family Procedure Rules 2010 – Practice Direction 5A (added April 2012)
Many thanks to Karyn Fleeting and Joel Turner of Tinderbox Media, without whose technical support and assistance I could not have hoped to produce these posts.