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17 JUL 2017

MoJ consults on plans to 'de-link' financial proceedings from divorce and dissolution proceedings

MoJ consults on plans to 'de-link' financial proceedings from divorce and dissolution proceedings

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The Ministry of Justice (MoJ) has launched a consultation on proposed amendments to Part 9 of the Family Procedure Rules 2010: Applications for a Financial Remedy.

The proposed amendments are intended to facilitate the 'de-linking' of applications for a financial order from proceedings for a decree of divorce or dissolution of a civil partnership, so that it will no longer be possible to make an application for a financial order in a divorce petition or dissolution application.
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Additionally, the proposed amendments would also make changes to the types of financial remedy cases to which the procedure in Chapter 5 of Pt 9 of the FPR applies, rename that procedure as 'fast track' and make some minor changes to the procedure itself.

The consultation closes at 5pm on Friday 8 September 2017. 

Commenting on the consultation, family law solicitor and arbitrator Tony Roe says:

'This consultation merits very careful consideration. There are some fundamental issues in play. Accordingly it is rather unhelpful that the consultation, which seems to present matters on a rather narrow basis, has been launched by the MoJ just before the summer recess. As such the deadline, 8 September, gives precious little time for responses to be submitted.

Amongst other things, I am not comfortable with the consultation’s proposal that financial claims be removed from the petition (application for a matrimonial or civil partnership order) itself, particularly if the petitioner/applicant were to remarry without having made an application for a financial order, thereby being statute-barred from doing so. De-linking can happen without that.

Whilst the consultation refers to the fact that the President noted in his 17th View that only a minority of divorce cases give rise to a money claim, it is important for parties, particularly litigants in person, to be aware of the implications that there may be by leaving financial aspects unresolved, without a consent order dismissing potential claims. Wyatt v Vince [2015] UKSC 14 demonstrated such risks when a former wife successfully brought a claim for financial remedies some twenty years after decree absolute.

As for the proposed introduction of the term "fast-track" for even financial relief claims limited to periodical payments or lump sums of up to £25,000, there appears to be nothing mentioned of any pilot. Moreover, I would be very surprised if such a procedure would massively improve the current delays within the court system.'

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