PRACTICE DIRECTION 9A – APPLICATION FOR A FINANCIAL REMEDY

This PD applies to applications issued by the court on or after 6 April 2022. For applications issued by the court before 6 April 2022 see the following link.

See also Part 9

PRACTICE DIRECTION 9A – APPLICATION FOR A FINANCIAL REMEDY This Practice Direction supplements FPR Part 9

Contents of this Practice Direction

TitleNumber
Introduction Para. 1.1
Pre-application protocol Para. 2.1
Costs Para. 3.1
Procedure before the first appointment Para. 4.1
Financial Statements and other documents Para. 5.1
Financial Dispute Resolution (FDR) Appointment Para. 6.1
Consent orders Para. 7.1
Section 10(2) of the Matrimonial Causes Act 1973 and section 48(2)of the Civil Partnership Act 2004 Para. 8.1
Maintenance Orders – registration in the family courts Para. 9.1
Pensions Para. 10.1
PPF Compensation Para. 11.1
Orders for payment in respect of legal services Para. 12.1
Applications to set aside a financial remedy Para. 13.1
Annex 

Introduction

1.1

Part 9 of the Family Procedure Rules sets out the procedure applicable to the financial proceedings that are included in the definition of a ‘financial remedy’.

1.2

The fast-track procedure set out in Chapter 5 of Part 9 of the Family Procedure Rules applies to—

(a) any application where the financial remedy sought is only for an order for periodical payments (as defined in rule 9.9B(1));

(b) any application made under—

(i) the Domestic Proceedings and Magistrates’ Courts Act 1978;

(ii) Schedule 6 to the Civil Partnership Act 2004;

(iii) Omitted

(iv) Article 10 of the 2007 Hague Convention;

(c) any application for the variation of an order for periodical payments, except where the applicant seeks the dismissal (immediate or otherwise) of the periodical payments order and its substitution with one or more of a lump sum order, a property adjustment order, a pension sharing order or a pension compensation sharing order.”

1.2A

The standard procedure set out in Chapter 4 of Part 9 applies in respect of all other applications for a financial remedy. In a case to which the fast-track procedure applies any party may seek a direction from the court that the standard procedure should apply to the application. An applicant who seeks such a direction must include a request in the application for a financial remedy and give reasons; any such request by a respondent, or any representations about a request by the applicant, must be made, giving reasons, within 7 days after service of the application for a financial remedy. At any stage in the proceedings the court may order that an application proceeding under the fast-track procedure must proceed under the standard procedure.”

1.3

Where an application for a financial remedy includes an application relating to land, details of any mortgagee must be included in the application.

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Pre-application protocol

2.1

The pre-application protocol annexed to this Practice Direction outlines the steps parties should take to-

  • seek to resolve their dispute without applying to court, for example via non-court dispute resolution, and
  • seek and provide information from and to each other before making any application for a financial remedy.

The court will expect the parties to comply with the terms of the protocol.

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Costs

3.1

Rule 9.27(1) requires each party to file with the court, and serve on each other party, not less than one day before a hearing or appointment, an estimate of the costs incurred by that party up to the date of that hearing or appointment. Rule 9.27(2) and (3) make provision for the filing and service of estimates of specified future costs not less than one day before a first appointment and a FDR appointment. The rule also makes provision for the filing and service of particulars of costs not less than 14 days before a final hearing of an application for a financial remedy.  The rule makes provision to ensure that all parties are aware of all incurred and estimated future costs (including their own) and for the court to give directions as to compliance if these requirements are not satisfied.

3.1A

References in rule 9.27 (and any other rule) to a time period of a day or a number of days must be read by reference to rule 2.9 (computation of time).”.

3.2

The purpose of this rule is to enable the court and the parties to take account of the impact of each party’s costs liability on their financial situations. Parties should ensure that the information contained in the estimate is as full and accurate as possible and that any sums already paid in respect of a party’s financial remedy costs are clearly set out. Where relevant, any liability arising from the costs of other proceedings between the parties should continue to be referred to in the appropriate section of a party’s financial statement; any such costs should not be included in the estimates under rule 9.27.

3.2A

An estimate of costs which is to be filed and served in accordance with rule 9.27(1), (2) or (3), and particulars of costs which are to be filed and served in accordance with rule 9.27(4) must be verified by a statement of truth.

3.2B

Where an estimate of costs or particulars of costs are to be filed by a party who is not legally represented, the statement of truth should be as follows-

“I confirm that:

(a) to the best of my knowledge and belief, the contents of [this estimate of costs/ these particulars of costs] are true and accurate; and

(b) [this estimate of costs/ these particulars of costs] will be filed with the court and served on each other party, in accordance with rule 9.27 of the Family Procedure Rules 2010.”

3.2C

Where an estimate of costs or particulars of costs are to be filed by a party’s legal representative, the statement of truth should be as follows-

“I confirm that:

(a) to the best of my knowledge and belief, the contents of this [estimate of costs/ these particulars of costs] are true and accurate;

(b) I have discussed the contents of [this estimate of costs/ these particulars of costs] with my client (the [applicant/ respondent] in these proceedings);

(c) [this estimate of costs/ these particulars of costs] will be filed with the court and served on each other party, in accordance with rule 9.27 of the Family Procedure Rules 2010.

3.3

Rule 28.3 provides that the general rule in financial remedy proceedings is that the court will not make an order requiring one party to pay the costs of another party. However the court may make such an order at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings.

3.4

Any breach of this practice direction or the pre-application protocol annexed to it will be taken into account by the court when deciding whether to depart from the general rule as to costs.

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Procedure before the first appointment

4.1

In addition to the matters listed at rule 9.14(5), the parties should, if possible, with a view to identifying and narrowing any issues between the parties, exchange and file with the court –

(a) a summary of the case agreed between the parties;

(b) a schedule of assets agreed between the parties; and

(c) details of any directions that they seek, including, where appropriate, the name of any expert they wish to be appointed.

4.2

Where a party is prevented from sending the details referred to in (c) above, the party should make that information available at the first appointment.

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Financial Statements and other documents

5.1

Practice Direction 22A (Written Evidence) applies to any financial statement filed in accordance with rules 9.14 or 9.19 and to any exhibits to a financial statement. In preparing a bundle of documents to be exhibited to or attached to a financial statement, regard must be had in particular to paragraphs 11.1 to 11.3 and 13.1 to 13.4 of that Direction. Whereon account of their bulk, it is impracticable for the exhibits to a financial statement to be retained on the court file after the First Appointment, the court may give directions as to their custody pending further hearings.

5.2

Where the court directs a party to provide information or documents by way of reply to a questionnaire or request by another party, the reply must be verified by a statement of truth. Unless otherwise directed, a reply to a questionnaire or request for information and documents shall not be filed with the court.

(Part 17 and Practice Direction 17Amake further provision about statements of truth)

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Financial Dispute Resolution (FDR) Appointment

6.1

A key element in the procedure is the Financial Dispute Resolution (FDR) appointment. Rule 9.17 provides that the FDR appointment is to be treated as a meeting held for the purposes of discussion and negotiation.Such meetings have been developed as a means of reducing the tension which inevitably arises in family disputes and facilitating settlement of those disputes.

6.2

In order for the FDR to be effective, parties must approach the occasion openly and without reserve. Non-disclosure of the content of such meetings is vital and is an essential prerequisite for fruitful discussion directed to the settlement of the dispute between the parties. The FDR appointment is an important part of the settlement process. As a consequence of Re D (Minors) (Conciliation: Disclosure of Information) [1993] Fam 231,evidence of anything said or of any admission made in the course of an FDR appointment will not be admissible in evidence, except at the trial of a person for an offence committed at the appointment or in the very exceptional circumstances indicated in Re D.

6.3

Courts will therefore expect –

(a) parties to make offers and proposals;

(b) recipients of offers and proposals to give them proper consideration; and

(c) (subject to paragraph 6.4), that parties, whether separately or together, will not seek to exclude from consideration at the appointment any such offer or proposal.

6.4

Paragraph 6.3(c) does not apply to an offer or proposal made during non-court dispute resolution.

6.5

In order to make the most effective use of the first appointment and the FDR appointment, the legal representatives attending those appointments will be expected to have full knowledge of the case.

6.5A

Where at a FDR appointment a settlement is not reached, the parties have an obligation to make open proposals for settlement in accordance with rule 9.27A. The normal direction would be that each party must file and serve their open proposals within 21 days of the FDR appointment. The court must consider whether it is appropriate to give any further directions about the filing and service of open proposals.

6.6

Omitted

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Consent orders

7.1

Rule 9.26 (1)(a) requires an application for a consent order to be accompanied by two copies of the draft order in the terms sought, one of which must be endorsed with a statement signed by the respondent to the application signifying the respondent’s agreement. The rule is considered to have been properly complied with if the endorsed statement is signed by solicitors on record as acting for the respondent; but where the consent order applied for contains undertakings, it should be signed by the party giving the undertakings as well as by that party’s solicitor.

(Provision relating to the enforcement of undertakings is contained in the Practice Direction 33A supplementing Part 33 of the FPR)

7.2

Rule 9.26(1)(b) requires each party to file with the court and serve on the other party a statement of information. Where this is contained in one form, both parties must sign the statement to certify that each has read the contents of the other’s statement.

7.3

Rule 35.2 deals with applications for a consent order in respect of a financial remedy where the parties wish to have the content of a written mediation agreement to which the Mediation Directive applies made the subject of a consent order.

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Section 10(2) of the Matrimonial Causes Act 1973 and section 48(2)of the Civil Partnership Act 2004

8.1

Where a respondent who has applied under section 10(2) of the Matrimonial Causes Act 1973, or section 48(2) of the Civil Partnership Act 2004, for the court to consider his or her financial position after a divorce or dissolution elects not to proceed with the application, a notice of withdrawal of the application signed by the respondent or by the respondent’s solicitor may be filed without leave of the court. In this event a formal order dismissing or striking out the application is unnecessary. Notice of withdrawal should also be given to the applicant’s solicitor.

8.2

An application under section 10(2) or section 48(2) which has been withdrawn is not a bar to making the final order of divorce or dissolution.

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Maintenance Orders – registration in the family court

9.1

Where periodical payments are required to be made to a child under an order registered in the family court, section 31L(3) and (4) of the1984 Act permits the payments to be made instead to the person with whom the child has his home. That person may proceed in his own name for variation, revival or revocation of the order and may enforce payment in his own name.

9.2

The registration in the family court of an order made direct to a child entails a considerable amount of work. Accordingly, when the High Court is considering the form of an order where there are children, care should be taken not to make orders for payment direct where such orders would be of no benefit to the parties.

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Pensions

10.1

The phrase ‘party with pension rights’ is used in FPR Part 9, Chapter 8. For matrimonial proceedings, this phrase has the meaning given to it by section 25D(3) of the Matrimonial Causes Act 1973 and means‘the party to the marriage who has or is likely to have benefits under a pension arrangement’. There is a definition of ‘civil partner with pension rights’ in paragraph 29 of Schedule 5 to the Civil Partnership Act 2004 which mirrors the definition of ‘party with pension rights’ in section 25D(3) of the 1973 Act. The phrase ‘is likely to have benefits’ in these definitions refers to accrued rights to pension benefits which are not yet in payment.

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PPF Compensation

11.1

The phrase ‘party with compensation rights’ is used in FPR Part 9, Chapter 9.For matrimonial proceedings, the phrase has the meaning given to it by section 25G(5) of the Matrimonial Causes Act 1973 and means the party to the marriage who is or is likely to be entitled to PPF compensation. There is a definition of ‘civil partner with compensation rights’ in paragraph 37(1) of Schedule 5 to the Civil Partnership Act 2004 which mirrors the definition of ‘party with compensation rights’ in section 25G(5). The phrase ‘is likely to be entitled to PPF Compensation’ in those definitions refers to statutory entitlement to PPF Compensation which is not yet in payment.

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Orders for payment in respect of legal services

12.1

An application for an order for payment in respect of legal services under section 22ZA of the 1973 Act or paragraph 38A of Part 8 of Schedule 5 to the 2004 Act must be made in accordance with FPR 9.7 using the Part 18 procedure. Where the application is made at the same time as an application for an order for maintenance pending suit or maintenance pending outcome, the applications may be included in one application notice, and evidence in support of or in response to the applications may be contained in one witness statement.

(Where an application is made for an order under FPR 9.7, a copy of the application notice must be served in accordance with the provisions of FPR Part 6 at least 14 days before the court is to deal with the application: FPR 18.8(1)(b).)

12.2

The evidence filed in support of an application for an order for payment in respect of legal services must, in addition to the matters referred to in rule 9.7(3), include a concise statement of the applicant’s case on –

(a) the criteria set out in section 22ZA(3) and (4) of the 1974 Act or paragraph 38A(3) and (4) of Part 8 of Schedule 5 to the 2004 Act as applicable; and

(b) the matters set out in section 22ZB(1) of the 1973 Act or paragraph 38B(1) of Part 8 of Schedule 5 to the 2004 Act as applicable.

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Applications to set aside a financial remedy

13.1

As set out in rule 9.9A(4), the Part 18 procedure applies to applications to set aside a financial remedy. Where such an application was made before rule 9.9A came into force, the Part 18 procedure will still apply subject to any directions that the court might make for the purpose of ensuring the proceedings are dealt with fairly (see the Family Procedure (Amendment No. 2) Rules 2016, rule 5).

13.2

If the financial remedy order was made before 22 April 2014, by any court, an application to set it aside under rule 9.9A is to be made to the family court. This is the combined effect of rule 9.9A(3), which provides that the application is made within the original proceedings, and the Crime and Courts Act 2013 (Family Court: Transitional and Savings Provision) Order 2014, which provides that any such proceedings became family court proceedings as of 22 April 2014.

13.3

If the financial remedy order was made on or after 22 April 2014, an application to set it aside under rule 9.9A is to be made to the court that made the order.

13.4

An application under rule 9.9A is to be dealt with by the same level of judge that dealt with the original application, by virtue of rule 17 of the Family Court (Composition and Distribution of Business) Rules 2014. Where reasonably possible, the application will be dealt with by the same judge that dealt with the original application.

13.5

An application to set aside a financial remedy order should only be made where no error of the court is alleged. If an error of the court is alleged, an application for permission to appeal under Part 30 should be considered. The grounds on which a financial remedy order may be set aside are and will remain a matter for decisions by judges. The grounds include (i) fraud; (ii) material non-disclosure; (iii) certain limited types of mistake; (iv) a subsequent event, unforeseen and unforeseeable at the time the order was made, which invalidates the basis on which the order was made.

13.6

The effect of rules 9.9A(1)(a) and (2) is that an application may be made to set aside all or only part of a financial remedy order, including a financial remedy order that has been made by consent.

13.7

The family court has the power under section 31F(6) of the Matrimonial and Family Proceedings Act 1984 to vary or set aside a financial remedy order. The High Court has the power under rule 9.9A and section 17(2) of the Senior Courts Act 1981 to set aside a financial remedy order. The difference in the wording of the legislative provisions is the reason that “set aside” has been defined as it has in rule 9.9A(1)(b).

13.8

In applications under rule 9.9A, the starting point is that the order which one party is seeking to have set aside was properly made. A mere allegation that it was obtained by, eg, non-disclosure, is not sufficient for the court to set aside the order. Only once the ground for setting aside the order has been established (or admitted) can the court set aside the order and rehear the original application for a financial remedy. The court has a full range of case management powers and considerable discretion as to how to determine an application to set aside a financial remedy order, including where appropriate the power to strike out or summarily dispose of an application to set aside. If and when a ground for setting aside has been established, the court may decide to set aside the whole or part of the order there and then, or may delay doing so, especially if there are third party claims to the parties’ assets. Ordinarily, once the court has decided to set aside a financial remedy order, the court would give directions for a full rehearing to re-determine the original application.  However, if the court is satisfied that it has sufficient information to do so, it may proceed to re-determine the original application at the same time as setting aside the financial remedy order.

13.9

The effect of rule 28.3(9) is that the Part 28 rules relating to costs do not apply to applications under rule 9.9A.”.

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Annex Pre-application protocol

Summary of the Pre-application Protocol for financial remedy proceedings

  1. The Protocol sets out the key steps the court will expect parties to take in relation to non-court dispute resolution (NCDR), i.e. resolving a dispute other than through the court process, before starting court proceedings. The Protocol also underlines the duty to make full and honest disclosure. The full Protocol is attached to this document. Everyone is required to comply with the terms of the Protocol, even if they have not had professional advice from a legal representative.

2. Before coming to court, unless there are safety concerns or other good reasons not to do so, the court will expect parties to have attended at least one form of NCDR. Please see paragraphs 10, 11, and 12 of the Protocol for more details.

3. All applicants are required to attend a MIAM before they start court proceedings unless they have a valid exemption, and all respondents are expected to do so. An authorised mediator will give the parties information about which form of NCDR may be most suitable.

4. If court proceedings are started, a party must set out their position on using NCDR using Form FM5 (which can be accessed here) and send this to the Court and to the other party at least 7 working days before the first hearing or as directed by the court.

5. If the parties have not attended a form of NCDR, the court may decline to commence the court timetable or suspend the court timetable so that the parties may attend a form of NCDR. The court will also take into account any failure by a party to attend a MIAM or form of NCDR when considering the question of costs (together with any other failure to comply with the Protocol, see paragraph 25) and may make an order requiring that party to pay the other party’s costs.

6. Lengthy and unnecessary correspondence must be avoided and the parties must seek to identify the issues as soon as possible. The impact of any correspondence upon the reader must always be considered, particularly the first letter.

7. Before starting court proceedings, the parties should attempt, where possible, voluntary financial disclosure and negotiation. Any disclosure must be full, honest and open. Parties must be advised of this duty by their legal advisers, including the ongoing duty to disclose any material changes. Requests for disclosure must be necessary, relevant and limited to what is reasonably required.

8. Pre-application disclosure should be provided using Form E (financial remedy proceedings) which can be accessed here); Form E1 (financial claims for the benefit of children under Schedule 1 of the Children Act 1989) which can be accessed here) or Form E2 (application to vary an existing order other than to capitalise periodical payments) which can be accessed here.

The Protocol helpfully signposts a number of on-line resources for the parties to consider to help them resolve the dispute without the need for court proceedings (paragraph 40).

Pre-application Protocol: financial remedy proceedings

Introduction

  1. Pre-application protocols explain the conduct and set out the steps the court expects parties to take before starting court proceedings.
  1. This Protocol applies to all applications for a financial remedy as defined by rule 2.3. It covers all classes of case, including applications for periodical payments, lump sum, property adjustment and/or pension sharing orders. It applies whatever the size of the parties’ assets and whether it is a so-called “needs” or “sharing” case. It applies whether the parties are legally represented or not.
  1. This Protocol underlines the duty of parties to make full and honest disclosure of all material facts, documents, and other information relevant to the issues.
  1. Any legal representatives instructed should give a copy of this Protocol to all parties, and explain its meaning and implications to their client, before they start court proceedings. 

Objectives

  1. The objectives of this Protocol are to encourage appropriate engagement in non-court dispute resolution and to:
  1. enable the parties to understand each other’s position;
  2. assist the parties in deciding how to proceed;   
  3. identify the issues in dispute;       
  4. narrow the scope of the dispute;  
  5. try to settle the issues without court proceedings;         
  6. support efficient management of dispute resolution; and       
  7. reduce the costs of resolving the dispute.

Compliance

  1. To comply with this Protocol the court will usually expect the parties to have done the following:
    a. attended a MIAM with an authorised mediator, unless a valid exemption applies;
    b. considered, and unless there is good reason for not doing, proposed and engaged in appropriate non-court dispute resolution;
    c. provided full disclosure (information relevant to the issues in dispute) to the other party, including appropriate financial disclosure;
    d. clearly set out their position (including the orders they would wish the court to make were proceedings started); and
    e. attempted negotiation (trying to agree the issues in dispute) by making reasonable proposals for settlement.

Attendance at a Mediation Information and Assessment Meeting (MIAM)

  1. A MIAM is a meeting where an authorised mediator will give the parties information about non-court dispute resolution, explain its benefits, and indicate which method(s) of non-court dispute resolution may be most suitable.
  2. All prospective applicants are required to attend a MIAM before they start court proceedings unless they have a valid exemption. All prospective respondents are expected to attend a MIAM before proceedings are started, unless there is a good reason why they should not do so.
  3. The list of exemptions for attending a MIAM are set out at rule 3.8. A link to the list of exemptions can be found here: https://www.justice.gov.uk/courts/procedure-rules/family/parts/part_03#para3.8.

Non-court dispute resolution

  1. Non-court dispute resolution is defined in rule 2.3. It means methods of resolving a dispute other than through the court process and includes, but is not limited to, the following:
    a. mediation (a third party seeking to facilitate a resolution);
    b. arbitration (a third party deciding the dispute);
    c. neutral evaluation (a third party giving a neutral indication on the dispute, such as a private Financial Dispute Resolution process); and
    d. the collaborative process (the parties and their collaboratively trained legal representatives meeting together, but with those legal representatives being prevented from representing the parties in later court proceedings if the collaborative process does not result in settlement).
  2. The court may also consider the parties having obtained legal advice via the “single lawyer” or a “one couple, one lawyer” scheme as good evidence of a constructive attempt to obtain advice and avoid unnecessary proceedings, if they have complied with paragraph 6 above.
  3. Although there is a place for constructive negotiation via correspondence between legal representatives, that alone shall not be a sufficient attempt at non-court dispute resolution for the purposes of this Protocol. Other forms of negotiation between legal representatives, such as round-table meetings, may be considered sufficient depending on when and how they took place.
  4. All parties and legal representatives should seek, from the outset, to engage in appropriate non-court dispute resolution, and keep any initial decision not to do so under careful ongoing review.
  5. Before starting court proceedings, the court will expect parties to have attended at least one form of non-court dispute resolution, unless there are safety concerns or there is another good reason not to do so.
  6. Legal representatives should make the parties aware that if they have not attempted at least one form of non-court dispute resolution before starting court proceedings then the court (on being informed by a party that this is the case or by the court finding out of its own initiative) may (i) decline to commence the court timetable by the issue of a Form C (Notice of a First Appointment); or (ii) suspend the same and instead make such directions as it thinks appropriate to ensure that at least one form of non-court dispute resolution has been attempted before directions on Form C are given.
  7. If one party is not willing to attend non-court dispute resolution, they should give reasons in writing so that (i) the other party is clear about their position and the reasons given for it; and (ii) if court proceedings are started the position is clear to the court when it is considering whether, and if so how, to encourage non-court dispute resolution.
  8. Before starting court proceedings, parties should bear in mind the following:
    a. although there may be an advantage in having a court timetable, many (if not all) of the same benefits can be achieved within a non-court dispute resolution process such as arbitration where the parties agree that the arbitrator’s case management powers are to be similar to those available to a court;
    b. if court proceedings are issued, the court will have the possibility of non-court dispute resolution forefront in its mind:
    i. by rule 1.4, the court must further the overriding objective by actively managing cases. By rule 1.2(2)(f), active case management includes encouraging the parties to use non-court dispute resolution if the court considers that appropriate and facilitating the use of such procedure;
    ii. by rule 3.3(1), the court must consider, at every stage in proceedings, whether non-court dispute resolution is appropriate;
    iii. by rule 3.3(1A), before a first hearing, and before any later hearing when the court so requires, a party must file with the court and serve on all other parties a form (Form FM5) setting out their views on using non-court dispute resolution as a means of resolving the matters raised in the proceedings. By paragraph 10C of PD3A, unless the court directs otherwise, the form is to be filed and served seven days before the relevant hearing;
    iv. by rule 3.4(1A), where the timetabling of proceedings allows sufficient time for these steps to be taken, the court should encourage parties, as it considers appropriate, to obtain information and advice about, consider using and undertake non-court dispute resolution; and
    v. by rule 28.3(7), a failure, without good reason, to attend non-court dispute resolution is an express reason for the court to consider departing from the general rule of no order as to costs.
  9. If court proceedings are started, the parties may be required by the court to provide evidence that non-court dispute resolution has been attempted or that there are good reasons for it not having been attempted.
  10. If the parties are engaged in non-court dispute resolution, an application to the court should not be made until the process has concluded, unless there are good reasons, which could include, but would not be limited to, seeking orders from the court to prevent assets from being disposed of or dissipated.
  11. Although there may be good reasons (for example, where there is a real risk one party may start competing proceedings in another jurisdiction or dissipate assets) to start court proceedings before attempting non-court dispute resolution, the court will still expect parties to attempt non-court dispute resolution to resolve other issues in dispute once the urgent issue which caused the party to start court proceedings has been resolved.

General principles

  1. Parties and legal representatives must always bear in mind the court’s overriding objective as set out at rule 1.1 to resolve cases justly, as quickly and fairly as possible, in ways that are proportionate to the nature, importance and complexity of the issues, and without costs being unreasonably incurred. By rule 1.3 the parties are required to help the court further the overriding objective. These obligations apply equally to conduct before as well as after proceedings have started.
  2. The needs of any children should be addressed and safeguarded.
  3. The procedures which it is appropriate to follow should be conducted with minimum distress to the parties and in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances.
  4. It is not acceptable for the costs of any case to be disproportionate to the financial value of the subject matter of the dispute. The principle of proportionality must therefore always be borne in mind. Proportionality is a factor the court will take into account when considering whether, and if so to what extent, to make an order for one party to pay the costs of the other party.
  5. Parties and legal representatives should be aware that where a court is considering whether to make an order requiring one party to pay the costs of another party, it will take into account (i) any open pre-application offers to settle; (ii) if a party did not attend a MIAM and was not exempt from doing so; (iii) the FM5; (iv) whether a party has provided appropriate financial disclosure and, if so, when; and (v) a failure, without good reason, to attend non-court dispute resolution or a premature and unjustified abandonment of ongoing non-court dispute resolution.

Correspondence

  1. All correspondence must focus on the clarification of claims and identification of issues and their resolution. Parties and legal representatives will usually be expected to raise and recommend non-court dispute resolution in early correspondence. Protracted and unnecessary correspondence must be avoided.
  2. The impact of any correspondence (including the time at which it is sent) upon the reader must always be considered. Any correspondence which raises irrelevant issues, or which might cause the other party to adopt an entrenched, polarised, or hostile position is to be discouraged.
  3. The circumstances of parties to an application for a financial remedy are so various that it would be difficult to prepare a specimen first letter. However, the tone and content of the initial letter is important and the guidelines in paragraphs 26 and 27 should be followed. Where a first letter is drafted by a legal representative, it should be approved in advance by the client. Particular consideration should be given as to how the first letter will be received by the person to whom it is sent, having regard to its tone and content.
  4. Legal representatives writing to an unrepresented party should always recommend that he or she seeks independent legal advice and, if sent in hard copy, enclose a second copy of the letter to be passed to any legal representative instructed. A reasonable time limit for an answer may be 14 days.

Identifying the issues

  1. Parties must seek to clarify their claims and identify the issues between them as soon as possible.

Disclosure and negotiation

  1. Before starting court proceedings, parties and their legal representatives (or those facilitating non-court dispute resolution) should consider whether the case is suitable for pre-application financial disclosure and negotiation. This option may be particularly suitable where providing or obtaining financial disclosure is not likely to be an issue or has already been adequately dealt with separately.
  2. If the parties give pre-application financial disclosure, they must provide full and honest disclosure to the other party of facts, information and documents which are material and sufficiently accurate and up-to-date to enable proper negotiations then to take place. Openness in all dealings is essential.
  3. Legal representatives must tell their clients in clear terms of this duty and of the possible consequences of providing false information without an honest belief in its truth.
  4. The duty of disclosure is an ongoing obligation until a final financial remedies order has been made and therefore includes the duty to disclose any material changes after initial disclosure has been given. Any agreement reached by the parties which is based on dishonest information supplied in pre-application disclosure is very unlikely to be upheld by the court. Legal representatives are referred to Resolution’s Good Practice Guides at https://resolution.org.uk/membership/our-code-of-practice/good-practice-guides/. They can also contact The Law Society Practice Advice Service on 020 7320 5685 or practiceadvice@lawsociety.org.uk.
  5. If parties provide financial disclosure before starting proceedings, they should do so using the appropriate financial statement (Form E, E1 or E2) as a guide to the format. The three forms used in financial remedy proceedings are as follows:
  1. Form E (which is used to give financial disclosure when resolving financial claims on divorce or dissolution of civil partnership) https://assets.publishing.service.gov.uk/media/63c132468fa8f516ac0d5a6d/Form_E_0123_save.pdf.
  2. Form E1 (which is used to give financial disclosure when resolving financial claims for the benefit of children): https://assets.publishing.service.gov.uk/media/661910c5679e9c8d921dfe4a/Form_E1_0424.pdf and
  3. Form E2 (which is used to give financial disclosure when resolving financial claims on an application to vary an existing order other than to capitalise an order for periodical payments):    
    https://assets.publishing.service.gov.uk/media/6515c07a6dfda600148e3846/Form_E2_0123.pdf

36. The financial information can then be summarised in Template ES2 (Composite asset and income schedule):
https://www.judiciary.uk/guidance-and-resources/notice-from-the-financial-remedies-court-4/

37. If the appropriate statement is the Form E1 or E2 the parties may, by agreement and where appropriate, use the Form E which requires more extensive and detailed financial information than the other two forms.

38. Documents should only be disclosed to the extent they are required by the financial statement in the first instance. Any requests for further disclosure should be limited to seeking information and documentation that is necessary, relevant, and proportionate. Excessive or disproportionate costs should not be incurred.

39. In the event of pre-application disclosure and negotiation, a court application should not be made when a settlement is a reasonable prospect.

Other resources

40. Legal representatives are encouraged to inform their clients of resources which may help them resolve the dispute without the need for court proceedings, and unrepresented parties are encouraged to consider such resources. These include but are not limited to:

Pension Advisory Group’s ‘A Guide to the Treatment of Pensions on Divorce’ (Second Edition, January 2024) –https://www.nuffieldfoundation.org/wp-content/uploads/2023/A-guide-to-the-treatment-of-pensions-on-divorce-2nd-edition.pdf

Summary

41. The aim of all steps that are taken before the start of court proceedings must be to assist the parties to resolve their differences speedily and fairly or at least narrow the issues and, should that not be possible, to assist the court to do so.

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