Guide to even greater ancillary relief

District Judge John Frenkel gives practical guidance to exploit the new ancillary relief schemeDropping the pilotThe Family Proceedings (Amendment No 2) Rules 1999 SI 1999/3491 brought the new ancillary relief scheme into force on 5 June 2000 after a three-year pilot.

Applications for adjudicated orders in the pilot courts resulted in an 85% settlement rate; as against 72% in other courts; and the improvement was attributable to a court-imposed timetable.

Thirty-five per cent of applications had settled around the first appointment (FA), 42% around the financial dispute resolution appointment (FDR) and 24% at or just before the final hearing.Full exposureThe ancillary relief pre-application protocol - see the President's Practice Direction (family proceedings: ancillary relief) [2000] 3 All ER 379 - encourages full and frank pre-application disclosure.

The secret of operating the new scheme lies in following the protocol wherever your opponent lets you.

Use the form E as a guide to format disclosure.

The prohibition on disclosure applies only after you file the application.

Voluntary, full pre-application disclosure gives a flying start for both parties.

If you cannot settle the application, at least you will narrow the issues.

At the FA, disclosure should be practically complete and you can use the appointment for the FDR.

Do not be dragged into a trial by correspondence.

If less than full protocol co-operation is received, issue form A without further delay.

Para 2.3 of the protocol states this striking principle - 'Making an application to the court should not be held as a hostile step, rather as a way of starting the court timetable controlling disclosure and endeavouring to avoid a costly final hearing'.Wait for itRemember those irrelevant and unending requests for information and documents? To stop vexatious demands for marginal information, you cannot be asked for disclosure or further information after the form A is filed and before forms E are exchanged.ShortcomingIf all you want to do is to vary a periodical payments order made for a child years ago, variation is still an ancillary relief application.

The full new procedure: form A, forms E and the rest apply.Interim applicationsIf there is a crisis (say, the mortgage is unpaid) how do you apply for interim periodical payments? Apply for all ancillary relief in form A, apply for an interim hearing under r.2.69(f).

Fourteen days is the minimum notice period.

If your client's form E is not yet served, then serve a short sworn statement on the respondent to explain why the order is necessary.

Include information about the applicant's means.

The rule 'orders' the respondent to file and serve his statement of means.

Form E: do not despairThis form represents a major advance over the narrative affidavit, so often devoid of any financial detail.

In the majority of applications, the form E will save you drafting a questionnaire.

Financial questions occupy 80% of the form and although they may be tiresomely detailed, the message is clear.

'This application concerns money.' Form E includes standard disclosure, three payslips, the last P60, a recent pension valuation and 12 months' bank statements.

Comply with the spirit of the rules if you cannot obtain some of the documents.

Send what you can and say when you will post the others.

Draftsman save that treeFPR 2.61B tells you which documents you must exchange and file before the FA.

The trick is to combine as much as possible into one document.

Start with the chronology, go on to the statement of issues (agreed if possible) which should lead to an incontestable request for further information and disclosure to close the gaps in your information.

Do not get bogged down in details.

You miss the point if you list every item of disagreement.

Set out the principal question.

For example: the wife says that the home should not be sold as she does not want the children to move school.

The husband's case is that there is enough money for them both to own their own home if the house is sold.

If that is the real issue, the court only needs a near enough valuation of their house.Adjournments unpopularThe FA cannot be adjourned without the court's permission.

The court should not permit an adjournment for the respondent to obtain legal advice at the last minute.

A litigant in person is expected to complete form E himself.

The court will be more sympathetic if you say that you are (truly) on the cusp of settlement or want a short delay to exchange settlement offers and combine the FA with the FDR.

Both parties must attend the FA unless otherwise ordered.

The FA defines the questions for the court to answer so that the real issues are addressed.

R.2.61D contains disclosure and expert evidence restrictions similar to those under the Civil Procedure Rules 1998.

To avoid the costs horrors of Evans v Evans [1990] 1 FLR 319, no information or disclosure can be demanded without the court's permission.

If the FA was not used as the FDR, the standard practice is to direct an FDR after the FA.FDR - the new deal Both parties must attend the appointment.

Look up the Practice Direction (see above) for the ground rules.

The purpose of the FDR is to assist the parties to reach agreement.

'What issues has the court to decide?' 'What are the parties' offers and responses?' 'What are the most important matters to each of them and their sticking points?' 'Has anyone brought a draft order to the hearing?' A draft often makes its underlying arguments compelling.

Most district judges are prepared to think aloud about the exercise of the Matrimonial Causes Act 1973 s.25 criteria, but a boundary must be observed.

The judge can consider possible outcomes after a contested hearing but cannot mediate.

A trap for advocates is to lose sight of the fact that judicial orders are more limited than agreed orders.

The court has no power to order a party to take out an insurance policy or to guarantee a new mortgage.

Undertakings may solve matters that are beyond the court's statutory powers.

I have found that parties more frequently resolve a common approach at the FDR that leads to a later settlement than achieve an outright agreement.

The agreement of third parties is usually involved to reach final settlement.

If the parties do not reach agreement:l A final hearing date is fixed;l In a substantial case or where there are unusual facts, sworn narrative statements may be ordered - W v W (2000) The Times, 15 March;l Offer details must be removed from the court file, and;l The FDR district judge must have nothing more to do with the application.Avoiding the wreckage - the spirit of the new procedure'It is striking, we think, how few divorcing couples with children have significant equity in the family home.

For the most part these properties were heavily mortgaged.

There is little room for manoeuvre.

There can seldom be much scope for selling the home to re-house the children and their mother in a cheaper property to free capital for the husband.'This quotation (from Child and Family Law Quarterly No 1 2000) sums up what we all know.

It is not within the spirit of the scheme to burden the modest application with the cost of two procedural hearings.

Most reasonable persons of modest means want to use the FA as the FDR.

The protocol holds the key.

Exchange Calderbank letters with the statement of issues.

Disclosure should nearly be complete by the FA.

Serve form G to use the FA as the FDR.

Applications cannot be adjourned without the court fixing another hearing.

CostsDo not overlook the costs rules introduced by r.2.69, which were considered by District Judge Roger Bird in 'Ancillary relief revisited' (see [2000] Gazette, 9 March, 41).District Judge John Frenkel sits at the Bristol Civil Trial Centre