New Family Procedure Rules – 6th April 2011

The new Family Procedure Rules 2010 (“FPR”) came into effect on 6^th April 2011. They consolidate the existing different set of rules and provide a single set of rules for family proceedings in the High Court, County Courts or Magistrates Courts.

Aims

The FPR are intended to modernise the language or rather the “legal jargon”. This means no more latin words! “Permission” has replaced “leave”; “without notice” replaces “ex parte”; the court acts “on its own initiative” and “permission to apply to the court” instead of “liberty to apply”. “Maintenance pending outcome of proceedings” will replace “maintenance pending suit”.   The FPR also now provide a single unified code of practice and alignment in all level of courts. New Forms with comprehensive guidance notes have been introduced and are designed to assist the litigant in person.

Divorce proceedings have become “matrimonial proceedings”. Decree nisi and absolute, petition prayers and affidavits were discarded when the FPR were drafted but disappointingly have been reintroduced because the IT used by the court staff has not been updated!  Decrees of divorce, nullity and judicial separation will now collectively be known as “matrimonial orders”. A petition (for divorce) has now become an “application”.  Ancillary relief has become a “financial order”. There is also the broader term of “financial remedy” which includes the above mentioned financial order but also additional proceedings under schedule 1 of the Children Act 1989 for financial provision for children.

Alternative Dispute Resolution

“ADR” means method of resolving a dispute, including mediation other than through the normal court process. The Courts must now consider at every stage in proceedings whether ADR is appropriate. However, if the court does so, it may adjourn for a specified period to enable the parties to obtain information and advice about ADR and where the parties agree to enable ADR to take place.  The new rules do not compel the parties to undertake ADR but merely enables them to obtain information and advice.

There has been some mistaken advance publicity about compulsory mediation! It is no secret that the government wants compulsory mediation before applications to courts for financial orders and children act proceedings order. From 6^th April 2011, there will be a half way house.

The protocol applies to most private law proceedings relating to children and proceedings for a financial remedy.  Therefore when an applicant makes an application to the court, he or she should, at the same time file a completed mediation information form confirming attendance at a mediation meeting or giving reasons for not attending.  Although the protocol does not introduce compulsory mediation, it does set up an extra procedure before an anxious parent/spouse/partner can apply to the court for an order in relevant family proceedings.

What happens to existing proceedings after 6^th April 2011?

The general scheme is to apply the FPR to existing proceedings so far as is practicable, but if not, to apply to previous rules.  So when an initiating step has been taken before 6^th April 2011, and that step used old forms, the case proceeds in the first instance under previous rules.  Orders made before 6^th April 2011 are still effective after.  There is a general presumption that the FPR will apply to existing proceedings when a new step is taken in existing proceedings or after 6^th April 2011 or when an application is issued before 6^th April 2011 but the hearing is after.  Only FPR new application forms will be issued by the court from 6^th April 2011. Old forms received at the court after 5^th April 2011 will be returned unissued. However, if urgent, the court may, allow old forms to issue as if they were FPR forms and at the same time give any appropriate directions.

It is worth nothing that the FPR however do not apply to applications under section 14 Trusts of Land and Appointment of Trustees Act 1996, which mainly deals with disputes relating to properties when parties are not married, or the Inheritance (Provision for Family and Dependants) Act 1975, neither of which are classified as “family proceedings”.

If you would like advice in this area the please contact Miss Vincent or Miss Booth on 01926 422 101