The law is unchanged. Therefore so is the terminology taken from the primary legislation, whatever relabelling the procedural changes purport to make.

For example, Matrimonial Causes Act 1973 section 1 speaks of ‘petitions for divorce’.

In the Family Procedure Rules (FPR), these will be known as ‘applications for a matrimonial or civil partnership order’ but will be started (see FPR 7.5) in ‘…any divorce county court’.

The court’s computer system will not be updated.

The rules

The rules cover family proceedings in all courts and sweep away previous rules.

Cases under TOLATA and the Inheritance (Provision for Family and Dependants) Act 1975, though often heard in family courts, are civil proceedings, and not affected. The rules are in 36 parts, subdivided into chapters and supplemented by practice directions.

What has come from the Civil Procedure Rules (CPR)?

The more obvious borrowings, with added family overtones, are:Cases on the various sets of family rules prior to 6 April will not be a good guide as to new practice – as with the RSC/CCR cases when the CPR came in.

  • The overriding objective and case management powers (subject, in all cases to relevant ‘welfare issues’ – FPR 1.1) – parts 1, 2 and 4;
  • Evidence to be verified by a statement of truth – part 17. The intention is as few affidavits and as many witness statements as possible. However, note that evidence in support of matrimonial proceedings in FPR 7.19 (4) (formerly special procedure affidavits) and financial statements (Forms E) at FPR 9.14 (2) (a)) are still sworn. Narrative evidence in financial applications and evidence in support of a Family Law Act 1996 part IV application will be by way of witness statement with statement of truth attached. A statement of truth must also be added to replies to questionnaires (FPR 17.2 and PD);
  • Expert evidence – part 25 largely replicates CPR part 35. FPR 25.10 (3) about ‘privilege’ and instructions, with its cross-reference to the meagre provision about disclosure at FPR 21.1, is unhelpful to a family practitioner. It will be necessary to continue to look to CPR part 31 to fill the gaps;
  • Costs – CPR 43, 44, 45.6, 47 and 48 are largely imported into, but not set out in, FPR Part 28. The previous ‘new’ general rule of no order for costs in ancillary relief proceedings at FPR 1991 2.71(4)(a) remains for most ‘financial remedy proceedings’ (FPR 28.3(5)) but with ‘Calderbanks’ still pertinent for Children Act 1989 Schedule 1 matters, and revived for interim orders (FPR 28.4(b));
  • Enforcement – CPR 69 – 73 (Receivers, general provisions, hearings to obtain information, third party debt orders, charging orders) are incorporated, with some modest differences into FPR Part 33, but they are not repeated in the body of the FPR, and therefore detailed cross-reference is required. Cross-reference is also required to CCR order 27 (attachment of earnings), order 28 (to supplement the rules on judgement summonses contained in FPR part 33) and order 29 (committals – for which see also FPR 33.5-33.8);
  • Appeals – FPR part 30, and reflective, but not repetitive of CPR 52. Note that appeals will require permission, are a ‘review’ of the decision complained of, and must be commenced within 21 (not 14) days of that decision unless the court orders a different period.

But neither should it be assumed that CPR-equivalent FPRs will be ­interpreted in the same way as the CPR. ‘Welfare’ is not in the CPR, but is central to the FPR at 1.1 and may well make a considerable difference to the interpretation.

Where has it gone?

A few signposts:

  • Matrimonial (divorce) and civil partnership proceedings (no longer ‘causes’/‘suits’) – part 7;
  • Starting proceedings – FPR 7.5;
  • A certificate (now a statement) as to reconciliation is still required because primary legislation – MCA 1973, section 6(2) – says so;
  • An ‘answer’ is still an ‘answer’ – FPR 7.12(8);
  • Time limits are unchanged – FPR 7.12(1) and 7.12(8);
  • No more special procedure – it has not been ‘special’ for a long time. Instead it is the norm and to be found at FPR 7.19 and 7.20.

Financial remedy proceedings – Part 9

  • Interim orders – FPR 9.7 (previously 2.64(2) and 2.69F). Beware – FPR 9.7 (1) (e) cannot give a power at law to make an interim order which does not exist under primary legislation (for example, MCA 1973 section 23 and Wicks [1998] 1 FLR 470 – court cannot order an interim lump sum);
  • Procedure – FPR 9.12 to 9.17 (previously 2.61A – F) deals with first appointments and FDRs. All is much as before. The PD (PD9A) expressly reminds parties of their duty of full and frank disclosure. MCA 1973 section 37 applications – FPR 9.6;
  • Pensions – FPR 9.29 to 9.37, with a new section (at FPR 9.38 to 9.45) of considerable detail where a party has compensation rights under the Pension Protection Fund;
  • Applications for consent orders – formally 2.61 – now FPR 9.26, and splendidly beefed up as to substance and detail. The applicant ‘must’ file the draft order sought to be approved. Such an express mandatory requirement was not present in 2.61. A court faced with two litigants in person (likely to become a more regular occurrence) may not draft the order for the parties even if it wishes to help out in this way. FPR 9.26 (1)(a) says that it is the applicant for the order who ‘must’ file the order sought, and that each party ‘must’ file a statement of information in the new prescribed form, with more cross-signing and indications both have read each other’s than before;
  • ADR and financial applications – FPR 3 and PD 3A – see below.

Family Law Act 1996 Part IV matters – Part 10

  • Media – see PD 10A. Must ensure public announcement of any such order made in private. PD 10A at 3.1.

Public and private children law ­matters – Part 12.

  • All the general matters, such as the overriding objective, and the rules on evidence and experts (see above) apply with equal force here. There are additional general rules about the process in FPR 12.1 to 12.21;
  • Public Law Outline 2008 incorporated – rules (FPR Part 12, general rules plus chapter 3). It will be interesting to see how the emphasis on timetabling in the PLO matches FPR case management at FPR 1.2–1.4, with the welfare based overriding objective at 1.1. The added pressure from the rules to ‘push on’ might clash with parents’ aspirations and timetables, and raise article 8 issues;
  • Private Law matters – FPR 12.31-12.35 encapsulate the current FHDRA process;
  • ADR and private law matters – FPR Part 3 and PD 3A at 3.5 – see below. Nothing in the PD overrides the PLP however.

Adoption – 2005 rules now at FPR Part 14

Forms generally – FPR PD 5A.

What’s new?

Here’s just a selection:

  • Forms – many have changed. Anticipate many more tick-box-style forms;
  • ADR – the requirement to consider ADR applies throughout all processes and at all stages (FPR 3.2), but the emphasis is on finances and private law children matters. Parties ‘are expected’ to have followed the protocol and explored the scope for a mediated outcome. Failure to do so can lead to the proceedings being stayed, and can be ‘conduct’ for costs orders. Basically, point the applicant client to a mediation information meeting in every possible case (so not where there is abuse or urgency);
  • Enforcement generally – an application can be non-specific and ask the court to consider the most appropriate method (FPR 33.2);
  • Enforcing undertakings – PD 33A clearly intends that by a combination of the FPR 33.1(2) incorporating, inter alia, CCR 29, PD33A and CCR 29.1A, undertakings for the payment of money shall become enforceable by contempt proceedings, provided all the right words are endorsed on the undertaking, and the giver of the undertaking signs a prescribed statement (FPR PD 33A).
  • FPR 7.21 (2) costs orders in matrimonial proceedings (divorce) – a person opposing such an order ‘will not be heard’ unless s/he has, not less than two days before the hearing, ­served on every other party written notice of intention to attend and seek/oppose a costs order.

So, there it is – the old, the new, the borrowed with perhaps ‘something blue’ contributed by those with need of the rules in the first place.

District Judge Spencer sits at Teeside Combined Court Centre