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Hayley Trim's Analysis: D-Day: Navigating the new Rules. And the Practice Directions. And the Forms.

Sep 29, 2018, 18:10 PM
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Date : Apr 5, 2011, 19:30 PM
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Hayley Trim, Family Law PSLIt's here. 6 April 2011. The date has taken on a daunting significance since we first learned that the Family Procedure Rules 2010 were on the way. The three and a half months since the first draft was available have flown by with practice directions and forms arriving piecemeal and the Court of Appeal already starting to interpret the text.

So, welcome the overriding objective and Mediation Information and Assessment Meetings (good luck finding a mediator who has ticked all the boxes to be able to carry them out yet - but at least you can give up after three attempts). Don't forget to complete the Form FM1, and comply with the Part 9 pre-application protocol in financial matters as well.

As of today, the courts will not be accepting the old application forms (save for those courts offering a period of grace for urgent applications). Getting the application form right has taken on an increased importance in many cases since a statement of case must now be verified by a statement of truth. So if completing a form has been taking some time, for example for those clients who cannot simply pop into the office for a meeting, you might now need to transfer the information into the new form and make additionally sure the client is aware of the consequences of making a false statement.

As well as the rules, practice directions and new forms, there's already some case law. The Court of Appeal noted in Goldstone v Goldstone [2011] EWCA Civ 39 that the County Court Rules and Rules of the Supreme Court are no longer the default position in family proceedings, and nor do the CPR directly apply. So what will the court do when there is a gap, for example as in Goldstone when the criteria to apply to the joinder of third parties came up (a matter that is not covered in the new rules)? The court may apply the CPR by analogy, but this will be for the court to decide as such matters arise.

In Traversa v Freddi [2011] EWCA Civ 81 Munby LJ considered the wording of the new Part 8 Chapter 6 concerning permission to apply under Part III (financial relief following a foreign divorce). He found the wording "odd" but concluded that applications for permission should be made ex parte. The rules do not expressly say that, and Senior District Judge Waller says that the intention of the drafting was that there would be a choice as to whether such applications should be made with or without notice. Munby LJ's obiter comments will however no doubt carry some weight.

So how best to help busy practitioners get to grips with the rules and find their way around them on a day to day basis? The Family Court Practice (the Red Book) is being fully updated and is on schedule to arrive by the end of May. In the meantime we've put together an online navigation package comprising the rules, practice directions and forms plus destination and derivation tables and a succinct guide. It's available now, free to existing Family Law Online subscribers, or at a cost of £30 to non-subscribers. [For more information call 0117 918 1294.]

Just the Family Justice Review to contend with now...

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

She works on the Family Law online major works providing updating notes on cases and other relevant developments as they happen for The Family Court Practice, Children Law and Practice and Matrimonial Property and Finance online.

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