Family Law

On 6 April, 2011, England and Wales has a new procedural set of rules with ancillary practice directions and very different forms.  What is striking about these 2010 Rules, as distinct from the 1991 Rules, is the considerable reference to European Union legislation of various forms; substantive and procedural.  Several Parts of the new Rules deal exclusively with international aspects.  If evidence was needed that English family law now operates in the international family justice system, the new Rules prove it.

One dramatic change is the requirement that an applicant for children or financial orders should first see a mediator to see if mediation is suitable, including making contact with the proposed respondent.  Some exemptions are available which will be fundamental in first to issue, lis pendens, cases under Brussels II.  Contacting the other party, e.g. about mediation, before securing jurisdiction could be fatal.  However many non-EU countries in forum disputes give some regard to who was first to issue, and therefore the exemption from first seeing the mediator should apply in all cases of possible foreign proceedings

England has the power to grant financial orders even after a foreign divorce including where the foreign court has dealt with financial matters.  The new Rules in Part 8 Chapter 6 set out the procedure, building on the guidance of the Supreme Court in Agjabe (2010) UKSC 13.

In a couple of months, two pieces of European Union legislation become law.  The EU Mediation Directive (2008/52) encourages mediation and give greater weight to the mediation outcome documents, causing some friction with England where mediation outcomes are initially privileged.  Part 35 sets out the necessary procedure and preconditions for mediation written agreements.  The EU Maintenance Regulation (4/2009) applies in June 2011, principally replacing Brussels I with a self-contained family maintenance legislative provision.  The Rules in Part 34 cover reciprocal enforcement, one of the most complex procedural areas of family law.  Practice Directions will be published before June 2011 in respect of the Maintenance Regulation.

Despite justifiable criticism of EU policymakers in their thoroughly anti-settlement and anti-family life imposition of first to issue in divorce proceedings under Brussels II and their belligerent attempts to impose applicable law on the UK, they have produced some very important cross Europe legislation on procedural matters.  The EU Service Regulation (1393/2007) assists service of family court documents across Europe and is covered in Part 6 Chapter 4.  The EU Regulation on Taking of Evidence (1206/2001) assists evidence from parties or witnesses elsewhere in Europe and is covered in Part 24.  Although recognition of divorce and other marital orders across Europe should be automatic under Brussels II, Declarations of Marital Status are covered in Part 8 Chapter 5.

The new rules are dramatic in being a complete rearrangement of existing rules and new procedures.  There are some major new powers for the court and expectations on the parties and the lawyers.  It has been a Herculean effort by the drafting committee.  Crucially they have fully embraced the many elements of international legislation now having domestic impact.

David Hodson is a Consultant at The International Family Law Group. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.