PRACTICE DIRECTION 41B - PROCEEDING BY ELECTRONIC MEANS: PROCEDURE FOR AN APPLICATION FOR A CONSENT ORDER FOR A FINANCIAL REMEDY IN CONNECTION WITH MATRIMONIAL OR CIVIL PARTNERSHIP PROCEEDINGS
This practice direction supplements rule 41.1 of the Family Procedure Rules 2010.
CONTENTS OF THIS PRACTICE DIRECTION
|A. SCOPE OF THIS PRACTICE DIRECTION|
|Introduction and interpretation||1.1 – 1.2|
|Types of applications which may proceed by electronic means||2.1|
|Steps which may be taken by electronic means: outline||3.1|
|B. RELATIONSHIP BETWEEN THE FAMILY PROCEDURE RULES AND THIS PRACTICE DIRECTION|
|Application of the Family Procedure Rules 2010 and supporting practice directions||4.1 – 4.2|
|C. PROCEDURE WHEN PROCEEDING BY ELECTRONIC MEANS VIA THE ONLINE SYSTEM|
|Application for a consent order for a financial remedy||6.1 – 6.9|
|Timing of applications||7.1 – 7.2|
|Service by email||8.1 – 8.4|
|Statements of Truth||9.1 - 9.3|
A. SCOPE OF THIS PRACTICE DIRECTION
Introduction and interpretation
1.1 This practice direction provides for the procedure by which, in the circumstances set out in this practice direction, an application for a consent order for a financial remedy in connection with proceedings for a matrimonial order or for a civil partnership order may proceed by electronic means.
(It should be noted that, while a presumption of death order under the 2004 Act is a form of “civil partnership order” as defined in rule 2.3 FPR, no application for a financial remedy may be made under the 2004 Act in connection with an application for such a presumption of death order.)
1.2 References in this practice direction to “the online system” mean HM Courts and Tribunal Service’s online system known as the Online Financial Remedy Consent Order Service, which allows for applications to which this practice direction applies to proceed by electronic means.
1.3 References in this practice direction to “applicant” and “respondent” are to the applicant and the respondent in financial remedy proceedings. The applicant for a financial remedy could be either the applicant (petitioner) or the respondent in the connected proceedings for a matrimonial or civil partnership order and, in turn, the respondent in the financial remedy proceedings could be either the applicant (petitioner) or the respondent in the connected proceedings for a matrimonial or civil partnership order.
Types of applications which must proceed by electronic means
2.1 An application must proceed by electronic means where all of the following conditions are met-
(a) subject to the exceptions in paragraph 2A.1, the application is for a financial remedy in connection with proceedings for a matrimonial or civil partnership order;
(b) a decree nisi or a conditional order (as applicable) has been made in that application for a matrimonial or civil partnership order;
(c) the application is for a consent order only;
(i) the applicant for a financial remedy is legally represented; or
(ii) the applicant and the respondent in the financial remedy proceedings are legally represented;
(f) the application is started in the family court.
2A.1 The exceptions referred to in paragraph 2.1 are where the application is for-
(a) an order for payment in respect of legal services; or
(b) a variation order in respect of a financial remedy order that was not made as a result of an application made via the online system
2.2 For the avoidance of doubt-
(b) filing a document via the online system does not mean that service of that document has been effected.
Steps that may be taken by electronic means: outline
3.1 This practice direction enables applicants to, in the circumstances set out in this practice direction, take the following steps by electronic means via the online system-
(a) create and start an application for a consent order for a financial remedy where all of the criteria in paragraph 2.1 are satisfied;
(b) in respect of such an application-
(i) file documents, if requested by the court to do so;
(ii) amend the application, if requested by the court to do so;
(iii) indicate willingness to accept service by the court of any documents relating to the application by email;
(iv) accept service of any documents relating to the application; and
(v) give notice of a change of solicitor to the court;
(c) view an electronic record of the progress and outcome of the application and download copies of documents.
3.2 This practice direction enables respondents to, in the circumstances set out in this practice direction, take the steps at paragraph 3.1(b) and (c) via the online system.”.
B. RELATIONSHIP BETWEEN THE FAMILY PROCEDURE RULES AND THIS PRACTICE DIRECTION
Application of the Family Procedure Rules 2010 and supporting practice directions
4.1 The Family Procedure Rules 2010 (“the FPR”) apply to proceedings to which this practice direction applies, subject to the provisions of this practice direction.
4.2 In particular, certain provisions of the FPR and supporting practice directions do not apply to proceedings to which this practice direction applies, but provisions of this practice direction apply instead. The key such provisions are detailed in the table below.
Provision in the FPR or supporting practice direction which does not apply
Provision of this practice direction which applies instead
Rule 5.1 FPR (forms)
Rule 9.26 FPR (applications for consent orders for financial remedy)
Paragraphs 6.2 to 6.9
Practice Direction 9A, paragraph 7.1 (consent orders)
C. PROCEDURE WHEN PROCEEDING BY ELECTRONIC MEANS VIA THE ONLINE SYSTEM
5.1 HM Courts and Tribunals Service will take such measures as it thinks fit to ensure the security of steps taken in cases proceeding by electronic means or in respect of information stored electronically. These may include requiring parties to cases which are proceeding by electronic means-
(a) to use a unique identification code or password;
(b) to provide personal information for identification purposes; and
(c) to comply with any other security measures,
before taking any of the steps mentioned in paragraph 3.1.
Application for a consent order for financial remedy
6.1 Where the criteria in paragraph 2.1 are all met, an application must be created, started and progressed via the online system, and the progress and outcome can be viewed, as specified in this practice direction.
6.2 The applicant must-
(a) complete all relevant sections of the application on the online system; and
(b) provide, in the manner specified, any information, any additional documents or amended application that this practice direction, the online system or the court requires.
6.2A The respondent must provide, in the manner specified, any information or documents that this practice direction, the online system or the court requires.”.
6.3 Subject to paragraph 6.8 and to rule 35.2 FPR, in relation to an application for a consent order –
(a) the applicant must file a draft of the order in the terms sought which must be signed by both parties; and
(b) each party must file with the court and serve on the other party, a statement of information in the form referred to in Practice Direction 5A.
6.4 Paragraph 6.3(a) is considered to be properly complied with if the draft order is signed by solicitors on record as acting for a party. However, 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 in relation to the enforcement of undertakings is contained in Practice Direction 33A supplementing Part 33 of the FPR).
6.5 Where each party's statement of information is contained in one form, it must be signed by both the applicant and respondent to certify that they have read the contents of the other party's statement.
6.6 Where each party's statement of information is in a separate form, the form of each party must be signed by the other party to certify that they have read the contents of the statement contained in that form.
6.7 Unless the court directs otherwise, the applicant and the respondent need not attend the hearing of an application for a consent order.
6.8 Where all or any of the parties attend the hearing of an application for a financial remedy the court may –
(a) dispense with the filing of a statement of information; and
(b) give directions for the information which would otherwise be required to be given in such a statement in such a manner as it thinks fit.
6.9 The following rules in the FPR contain provision in relation to applications for consent orders - rule 9.32 (pension sharing order), rule 9.34 (pension attachment order), rule 9.41 (pension compensation sharing orders) and rule 9.43 (pension compensation attachment orders.)
Timing of applications
7.1 An application for a consent order for a financial remedy that is submitted via the online system is lodged with the court on the date and at the time that HMCTS software records the application as received, provided that the application is subsequently issued by the court.
7.1A A document, other than an application for a consent order for a financial remedy, that is submitted via the online system is filed with or otherwise received by the court on the date and at the time that HMCTS software records the document as received.
7.2 When an application for a consent order is received via the online system, an acknowledgment of receipt will automatically be sent to the email address given as the address for service in the online system. This acknowledgment of receipt does not constitute a notice that the application has been issued.
Service by email
8.1 Practice Direction 6A makes provision about methods of service, including by email. That practice direction applies to proceedings to which this practice direction applies, subject to the modification made in paragraphs 8.2 to 8.4.
8.2 The following are also to be taken as sufficient written indication of willingness to be served by email for the purposes of paragraph 4.2(a) of Practice Direction 6A- (a) confirmation given on or via the online system that a party is willing to accept service by email and stating the email address for such service; and (b) the fact of a legal representative for a party having registered on MyHMCTS (being the online case management tool managed by HM Courts and Tribunals Service).
8.3 Where a party has indicated willingness to accept service by email (as set out in paragraph 8.2), service of a document may be effected by the court sending the party an email, to the address given for service by email, containing a link from which the document may be accessed and downloaded.
8.4 References in paragraphs 4.2 to 4.5 of Practice Direction 6A to service of a document by email include service by the court acting in accordance with paragraph 8.3 of this practice direction.
Statements of Truth
9.1 In paragraphs 9.2 and 9.3, “document” means anything in which information of any description is recorded.
9.2 Where a statement of truth is included in any document completed or generated using the online system-
(a) the document must include the name of the person who the online system requires to give the statement of truth recorded against the statement of truth; and
(b) the court may require the party to produce a copy of the document containing the signature of the person referred to in sub-paragraph (a) at a later date.
9.3 Practice Direction 17A applies to a statement of truth given in a document completed or generated via the online system, except that-
(a) paragraphs 1.5 and 2.3 of Practice Direction 17A do not apply;
(b) in the heading to paragraph 3 and in paragraphs 3.1, 3.7, 3.8 and 3.10 of Practice Direction 17A, references to “sign”, “signs”, “signed” and “signing” are to be read as references to the name of the person being, or having been, recorded against the statement of truth included in the document completed or generated via the online system;
(c) paragraph 4.3(a) is substituted with-
“(a) that the content of the document completed or generated via the online system has been read to the person before completion of the statement of truth required by the online system;”;
(d) paragraph 4.3(e) is substituted with-
“(e) that the person confirmed in the presence of the authorised person that it was their belief that the contents of the document completed or generated via the online system were true.”; and
(e) the Annex is substituted with-
“Certificate to be used where a person is unable to read or sign a document completed or generated in proceedings to which the online scheme in Practice Direction 41B applies.
I certify that I [name and address of authorised person] have read the contents of the [name of document completed via the online system] and the statement of truth to the person whose name is recorded against the statement of truth, who appeared to understand (a) the [name of document] and approved its contents as accurate and (b) the statement of truth and the consequences of making a false statement, and orally confirmed that this was the case in my presence.”.
Change of solicitor
10.1 When an application for a consent order is proceeding on the online system, rule 26.2(2)(b) FPR does not apply. Instead, notice of a change of solicitor must be given to the court by a party or a party’s solicitor (where one is acting) submitting information in relation to that change on the online system.