The following is intended as a practical overview of changes in the operation of the family court with an indication of further changes to come. The developments to date are set out chronologically.
The starting point for all family practitioners is Changes To The Divorce Process In England And Wales: Q&A, produced by HM Courts & Tribunals Service in April. The principal elements of this document, which has since been updated, are:
(a) As is now well known, there are 11 divorce centres:
- North-east – Durham, Doncaster, Harrogate (on a temporary basis) and Bradford;
- North-west – Liverpool;
- Wales – Neath, Newport and Wrexham;
- Midlands – Nottingham and Stoke;
- South-west – Southampton; and
- London and south-east – Bury St Edmunds.
(b) Petitions for divorce and financial remedy applications should be sent by post to one of the divorce centres.
(c) Where a hearing is required, this will take place, where possible, at the applicant’s preferred hearing venue. The Family Procedure Rules Committee will be considering changes to Form A and the D8 petition so that a preferred hearing venue can be requested on the form.
(d) Save for in the north-east, the process for the dissolution of civil partnerships is different. Applications will be required to be sent to divorce centres, but the timetable for that has not yet been confirmed.
(e) Where financial remedy applications are being dealt with by consent, they will mainly be handled by district judges at the divorce centres.
(f) Where a financial remedy application has been issued and referred to a local hearing centre, the divorce will continue at the divorce centre. The divorce centre will notify the hearing centre of the progress of the divorce, for example when decree nisi has been pronounced.
(g) There are no changes which impact on the ability to issue urgent petitions, for example where there is a jurisdiction race. All family court venues that have district judges onsite, including the Central Family Court, will be able to accept urgent petitions and applications, and will retain the facility to issue. In that regard, the D8 petition will be amended with an additional box so that matters of urgency can be addressed.
(h) Applications to vary or discharge an order should go to the divorce centre. They will be redirected to local venues if necessary.
The Law Society’s Family Section has issued an update:
(i) The transfer of work from London to Bury St Edmunds started in July. The transfer was on a phased basis with the intention that by next month all undefended divorce work (with the exception of urgent matters) will be processed through Bury St Edmunds. It is expected that the Bury St Edmunds Divorce Centre will issue approximately 40,000 petitions a year.
(ii) It is anticipated that the D8 petition will be amended by the end of this month, with the inclusion of a box to enable the petitioner to indicate their preference of court if a hearing is required. Possible venues may be the same court as any Children Act proceedings: either where the parties reside, or if the parties are based in different areas, a central location.
(iii) National guidance is being developed on what will constitute ‘urgent’ work. Obvious examples are given, such as section 37-related matters or jurisdictional disputes. Pending further guidance, local courts will be able to continue to process urgent work.
The Financial Remedies Unit has been established as a specialist unit within the Central Family Court. Its purpose is the efficient handling of complex financial cases. The overriding criterion for a case to be retained in the FRU is complexity.
Form A may be issued in the FRU at the Central Family Court, as opposed to at the Bury St Edmunds Divorce Centre, upon completion of the Certificate of Financial Complexity. The certificate was issued with the approval of Lord Justice Munby, president of the Family Division, in June.
The certificate requires details to be given of the estimated total value of the assets, with boxes to be ticked flagging up potential areas of complexity which include the following:
- Complex asset or income structures.
- Assets held offshore or through offshore settlements, or assets held through family businesses or unquoted corporate entities, or where there is an issue over the value of such entities.
- Expert accountancy evidence will be required.
- There are issues as to the parties’ respective contributions, or there may be substantial arguments about matrimonial or non-matrimonial assets.
- There may be disputed allegations of obvious and gross conduct.
- There are substantial arguments concerning the illiquidity of assets.
- The applicant involves a complex or novel legal argument.
If it appears on the face of it that the criterion of complexity may not be met, the matter will be referred to a judge of the FRU, who may decide to return the application or refer the Form A to Bury St Edmunds for issue. The court may still list the matter up to a First Appointment in the FRU. Cases that are inappropriately issued in the FRU and which have to be referred to Bury St Edmunds may be subject to delay as the matter will be transferred between courts. In a similar vein, those matters where a First Appointment is listed in the FRU, but is not subsequently retained may also suffer delay due to subsequent transfer.
Both petitions and Form As may be issued at the Central Family Court, or other family court centres, where there are jurisdictional issues or urgent relief is required. Once such applications have been issued and the urgent matters dealt with, the normal tests of complexity or locality will determine the venue.
On a separate note, in July Mostyn J updated and revised the statement on the efficient conduct of financial remedy hearings before High Court judges. Of particular note are the asset thresholds. For transfer to the High Court, overall net assets should exceed £15m, or the overall net earned income exceed £1m. For lower-value cases (those where the overall net assets are under £15m but over £7.5m), there should be substantial allegations or issues relating to non-disclosure, substantial assets held offshore, reliance on a nuptial agreement or significant third-party interests. Where the net assets do not exceed £7.5m, allocation to a High Court judge is only likely to be proportionate where the application involves a novel and important point of law.
A further update on how these changes are working and any additional developments will be provided later in the year.
Andrew Newbury, Slater and Gordon