This paper is the response of The International Family Law Group LLP (iFLG) to the Ministry of Justice’s (MOJ) proposed amendments to Part 9 of the Family Procedure Rules 2010 (FPR). We are pleased that the MOJ has decided to consult in relation to these issues which have the potential to have significant repercussions for national and international families.
We have focused on the narrow and discrete issues on which we understand the MOJ is consulting, although we mention in passing the importance of ensuring that the family judge dealing with the financial proceedings, particularly at FDR if being asked to approve a final financial order, has access to the divorce file so that they can ascertain what stage the divorce proceedings have reached.
We are aware that the status in respect of EU legislation including Brussels II (BII) and the EU Maintenance Regulation (MR) after the UK has left the EU remains unclear, but for the purpose of this response we have proceeded on the basis that they are currently part of the law of England and Wales. We do however note that in the event the MR was not transposed into national law post-March 2019, many of the issues identified in this response may no longer apply.
iFLG is a leading specialist law firm, based London, looking after the interests of international and national families with an emphasis on a conciliatory and holistic approach. We are experts in financial and children’s matters relating to relationship breakdown, including forum shopping and international enforcement orders. As accredited specialists we receive instructions from foreign lawyers and act for clients of other law firms seeking our expert experience. iFLG has a contract with the Legal Aid Agency, which is used to assist clients who are involved in child abduction proceedings. iFLG is regularly instructed via ICACU (the operational Central Authority for England and Wales for the 1980 Hague Convention).
The primary authors are David Hodson, Michael Allum and Stuart Clark, who are detailed in the appendix.
Owing to our specialist area of work we have provided greater feedback in relation to questions 1-3, but have endeavored to provide some feedback in response to questions 4 and 5 where possible.
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?
We mention briefly at the outset the position in respect of divorce proceedings as it is relevant to our response to this question. In summary, the lis pendens provision in Articles 16 and 19 BII provide that where parties can bring divorce proceedings in more than one EU Member State, the divorce proceedings shall take place in the country where proceedings were first lodged. As a result, individuals with sufficient connections to more than one EU Member State often have little choice but to issue divorce proceedings urgently and without notice to their spouse in order to secure divorce jurisdiction. This is at odds with seeking to promote reconciliation and resolving matters amicably, but individuals are left with little choice given the effect of the first to lodge principle within BII.
The financial outcomes on divorce vary significantly depending on the country in which those proceedings take place. This is particularly so in respect of maintenance proceedings. For example, in England and Wales the approach of the courts is based on needs and, although the general perception in the profession is that there is a move away from substantive joint lives maintenance orders, the courts can and will make such orders in appropriate cases. By contrast, we understand that the position in Scotland is very different and that maintenance orders are usually limited to three years. Many other EU counties including France also have much less generous provision in relation to maintenance.
Article 12(1) MR provides that where proceedings involving the same course of action between the same parties are brought in the courts of different Member States, any court other than the court first seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established. Article 12(2) MR provides that where the jurisdiction of the first court is established, any court other than the court first seized shall decline jurisdiction in favour of that court. The effect of these provisions is that if one party lodges maintenance proceedings with the courts of any country which is a Member State of the EU, the maintenance proceedings will be determined in that country. It is the lis pendens provision.
In England and Wales divorce and financial proceedings are separate sets of proceedings, albeit they currently proceed under the same court case number and the financial proceedings can only be ancillary to the divorce proceedings (i.e. unlike in many other countries including Australia it is not possible to have standalone financial proceedings without divorce proceedings). Provided they are uncontested, the divorce proceedings are dealt with on paper and there is no need for either party to attend court. By contrast, financial proceedings set down extensive disclosure requirements and a series of court hearings which the parties are required to attend.
Historically English divorce petitions have always contained a “prayer” section in which the petitioner/applicant can indicate whether they want to apply for a financial order. The petition has recently been updated and whereas the previous petition contained a list of all the different types of financial order, the new petition instead contains a single question asking whether the petitioner/applicant wants to apply for any form of financial order. This change has the potential to cause difficulties as it may no longer be possible to identify whether the financial order being sought relates to maintenance or property. We deal with this in more detail below.
The ability to make financial claims within a divorce or dissolution petition is relevant because of the lis pendens provisions within the MR. If a petitioner/applicant does not have the ability to make maintenance claims within a divorce or dissolution petition, then they will be left with no option but to also issue separate financial proceedings in Form A if they wish to secure maintenance jurisdiction.
The FPR currently provides, r.9.4, that an application for a financial order may be made in the application for a matrimonial or civil partnership order (i.e. in the divorce or dissolution petition) or at any time after an application for a matrimonial or civil partnership order has been made (i.e. in by way of a Form A). In addition, r.2.3 FPR defines a financial order as meaning a variety of orders including an order for maintenance pending suit and an order for periodical payments. It would therefore appear from the way the FPR are currently drafted that it may be possible to commence maintenance proceedings by ticking the relevant box in the divorce or dissolution petition, albeit the FPR are only secondary national legislation.
We emphasise the word may above because at the moment there is no case law authority confirming that ticking the appropriate box within the divorce or dissolution petition is sufficient to constitute commencing maintenance proceedings. The closest the English family court has got to determining the issue was in Re V, although in that case the husband had issued a Scottish writ of divorce without any reference to maintenance and on that basis Parker J, perhaps unsurprisingly, held that the husband’s Scottish writ of divorce did not constitute commencing maintenance proceedings. It is right to say that we understand the husband in Re V has been given permission to appeal to the Court of Appeal, although we understand he is not appealing in relation to this aspect of the order made by Parker J. When we first heard Re V was being appealed we had hoped it may provide an opportunity, albeit perhaps only obiter, for the Court of Appeal to address this issue.
Our perception from discussing this issue with various members of the profession is that most believe that ticking the relevant box(es) in the previous divorce or dissolution petition would be sufficient to constitute commencing maintenance proceedings, although crucially there is no case law authority to support this and the position is less clear now that the petition has been amended. Given the uncertainty as to whether it is possible to commence maintenance proceedings by ticking the appropriate boxes in the new form of divorce or dissolution petition, the situation described in our opening paragraph is compounded as individuals often find themselves also having to issue a Form A in order to secure maintenance jurisdiction. This has the effect of setting down a court timetable including for extensive disclosure and court hearings which inevitably leads to significant costs.
In the course of our work we come across a very wide variety of individuals and families, ranging from the very well-connected and wealthy to the vulnerable and financially weak. The effect of having to issue Form A to secure maintenance jurisdiction can hit the less wealthy particularly hard, as they often cannot afford specialist legal representation throughout contested financial remedy proceedings and can often find themselves, having had to issue Form A to avoid the risk of maintenance being determined in a country where they would receive a very modest outcome, having to act in person at a crucial stage in the English proceedings.
Our understanding of the MOJ’s proposal to de-link financial remedy applications from divorce and dissolution proceedings is that it involves amending r.9.4 FPR with the effect that it will no longer be possible to commence financial or maintenance proceedings within the divorce or dissolution petition. Whilst we acknowledge that the law is not settled at the moment and to play safe parties often have to issue Form A anyway in order to secure maintenance jurisdiction, we raise the fact that the possibility of securing maintenance jurisdiction without issuing Form A will be removed altogether if r.9.4 is amended as currently proposed.
We also mention as an aside that our understanding is that is possible to apply for a unilateral notice to be registered with the Land Registry on the basis there is a pending land action provided a request for a property adjustment order had been included within the prayer in the divorce petition. It remains to be seen how the Land Registry will deal with the new form of divorce petitions where the previous list of financial orders has been replaced by a single box, but we raise the possibility of this potential protection no longer being available unless a Form A has been issued.
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 the applicant in matrimonial and civil partnership proceedings and of the relevant online content on gov.uk?
The production of guidance notes in divorce and dissolution petitions may be able to provide parties with information about the risk that maintenance proceedings might take place in another country, however (subject to Question 3 below), they will not be able to reduce or mitigate the risk of maintenance proceedings being brought in another country unless financial proceedings have been issued in England and Wales by way of a Form A.
We have provided commentary separately on the new form of divorce petition and commended the guidance notes contained within it. In the event the MOJ proceed with their proposed amendments to Part 9 FPR, we agree it would make sense to incorporate information in relation to the issues we have addressed in response to Question 1 above in the guidance notes, although this could of course have the effect of encouraging more parties to issue Form A at the outset.
Question 3: If you have answered “no” to Question 2 above, do you consider that this risk can best be mitigated through the introduction of a new form of protective application?
We have given this a lot of consideration. On the one hand it appears as though it might be possible for a new form of protective application to be introduced in order to give a party issuing divorce proceedings here the opportunity to reserve their right to subsequently bring maintenance proceedings here. This would have the very commendable benefit of securing maintenance jurisdiction without the need to issue full-blown financial proceedings which come with extensive disclosure requirements, court hearings and significant costs.
However, on the other hand, we have concerns about whether this would work in practice. First, until there is judicial authority it would be unclear as to whether or not this new form of protective application would be sufficient to secure maintenance jurisdiction. Second, if it was possible, should it be indefinite or should it be time limited? It would seem unfair to secure maintenance jurisdiction indefinitely without taking any steps to progress those proceedings and, to borrow a phrase from the husband’s legal team in Chai v Peng, it would be akin to laying one’s towel upon the sun lounger of the English court and returning later to bask in the warmth of the English court’s approach to maintenance. If, however, it was to be time limited, it would only provide limited relief, albeit perhaps enough time for the parties to seek to resolve matters direct or via mediation, and would throw up the question as to how for long it should be possible to be seize maintenance jurisdiction.
There is no one-size-fits-all solution and we are pleased that the MOJ have decided to consult the legal profession in relation to this issue because of the important implications for international families. We would welcome the thoughts and experiences of other law firms and would be interested in having an opportunity to comment upon any further draft legislation or court forms. Given the lack of judicial authority we acknowledge that the current ability to issue financial proceedings within divorce or dissolution proceedings does not necessarily currently provide adequate protection, but we would be disappointed to see this possibility removed altogether.
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?
Owing to our specialism and area of work, we are not involved in many cases where the applicant is seeking a lump sum of less than £25,000. That said, whilst we applaud the intention of seeking to establish a fast-track approach to save costs, we have concerns about the feasibility of a party or their solicitors deciding at such an early, pre-disclosure stage, to limit claims to such an extent. We can envisage this creating real difficulties for solicitors in terms of potential negligence claims with the effect that parties would either be advised to avoid the fast-track procedure or be required to sign a disclaimer before proceedings are issued.
Question 5: If you have answered “no” to Question 4 above, what do you regard as an appropriate threshold?
Given our specialism and area of work we feel there are other law firms who would be better placed to comment upon the appropriate threshold for allocating a financial remedy case to the proposed fast-track procedure.
The International Family Law Group LLP
© 8 September 2017