5. Financial Orders II

Question 1

2 different procedures for obtaining a FO

Answer 1

standard;
fast track

Question 2

procedure for public funding

Answer 2

initial advice and negotiations carried out using legal help and lower family help. once proceedings are about to be issued, solicitor applies for higher family help

Question 3

where are the financial procedure rules set out

Answer 3

pt 9 FPR 2010

Question 4

what is the overriding objective

Answer 4

enabling the court to deal with cases justly, having regard to any welfare issues involved r1.1(1) - involves dealing with it expeditiously and proportionately

Question 5

what does r3.4 FPR state

Answer 5

court can direct proceedings be adjourned where they consider non-court dispute res to be appropriate at any stage

Question 6

WL v HL

Answer 6

judge adjourned proceedings to enable parties to obtain info and advice, and consider using non-court dispute resolution and if parties agreed, to enable that non-court dispute resolution take place

Question 7

what are the 3 phases for a financial order proceeding?

Answer 7

1. Filing of application until end of First appointment
2. End of first appointment until end of financial dispute resolution hearing
3. End of FDR until final hearing

Question 8

which 2 phases are need to achieve a final consent order?

Answer 8

phase 1 & 2

Question 9

what can the parties agree to vary in relation to the court procedure

Answer 9

non-court dispute resolution / private FDR

Question 10

what happens if parties agree to a private FDR

Answer 10

they will pay a financial remedy specialist to carry out FDR, which is carried out at a time and location convenient for the parties

Question 11

HW v WW

Answer 11

private FDR’s are strongly encouraged

Question 12

what is required under s10 CFA 2014

Answer 12

before making an application to court in relevant family proceedings, applicants must attend a MIAM

Question 13

exemption to MIAM requirement

Answer 13

mediator is satisfied the case is not suitable for mediation- where there is an allegation of domestic abuse, where the application is urgent, where applicant has contacted 3 mediators within 15 miles of applicants home, and none is able to conduct a MIAM within 15 working days of the contact date

Question 14

what should an applicant (without a MIAM exception) do before applying to court

Answer 14

contact a family mediator arranging for applicant to attend a MIAM

Question 15

what should the MIAM mediator be provided with

Answer 15

contact details for respondent, so they can contact R and discuss R’s willingness and availability to attend MIAM

Question 16

what should applicant who has attended a MIAM do

Answer 16

complete relevant part of application form confirming that they have attended MIAM / given reasons for not attending

Question 17

what will courts take into account before proceedings continue ? r 3.1

Answer 17

failure to comply with attending MIAM and may refer parties to a meeting with mediator

Question 18

how can an applicant in the divorce make an application

Answer 18

in summary (prayer) to the divorce application & follow up formal application in divorce application by filing a notice of intention to proceed in Form A

Question 19

why should a financial order application be made at an early stage?

Answer 19

The remarriage trap: this is caused by s 28(3) of the MCA 1973, which states: ‘If after the
grant of a decree … either party remarries … that party shall not be entitled to apply …
for a financial provision order in his or her favour, or for a property adjustment
order’. Thus the court cannot make an order in such circumstances, even by consent;
see E v E (Premature Remarriage) [2008] 1 FLR 220).

b) lengthy delay in proceeding may result in less advantageous order being made if the delay has prejudiced R

Question 20

will a delay lead to a claim being struck out?

Answer 20

no FPR 4.4(1)

Question 21

Vince v Wyatt

Answer 21

wife applied for financial orders 18 years after divorce. SC held that application could only be struck out under 4.4(1) if :

there were no reasonable grounds for the application which meant that the application was not legally recognisable

the statement of case amounted to an abuse of process

Question 22

how can consent orders be filed

Answer 22

online- complete form a
in person- form a and file at local financial remedies court

Question 23

what happens upon applicant filing form a ?

Answer 23

court will fix date for the first appointment between 12-16 weeks ahead (timing cannot be altered without court permission.

Question 24

what must a court serve on respondent within 4 days of filing form a

Answer 24

a copy of forms a and c

Question 25

what must applicant serve on respondent

Answer 25

notice of issue of legal aid (if relevant copy of notice of acting (legal help divorce case only)

Question 26

to whom else must form a be served upon

Answer 26

any lender or persons responsible for a pension arrangement, mentioned in the application 9.13(3), 9.31, 9.33 and 9.4

Question 27

what must a party with pension rights without valuation less than 12 months old at date of first appointment do

Answer 27

within 7 days upon receiving notification, request one from pension arrangement

Question 28

by when must the pension arrangement provide a valuation

Answer 28

within 6 weeks

Question 29

obligation of parties re disclosure

Answer 29

duty of full & frank disclosure

Question 30

how long does the duty of disclosure last for

Answer 30

ongoing & includes duty to disclose any material changes after initial disclosure has been given

Question 31

what happens if parties do not give full disclosure?

Answer 31

court draws adverse inferences and makes an increased order

Question 32

consequences where parties do not give full disclosure

Answer 32

penalty in costs reduced order for applicant forfeiture of legal prof privilege final order being set aside at a later date party imprisoned for contempt of court criminal sanctions under fraud act

Question 33

what did bokor-ingram demonstrate

Answer 33

duty of disclosure not only applies to current resources, but facts relevant to resources that parties may have in the foreseeable future- husband omitted to disclose job negotiations with new employers had reached a very advance stage

Question 34

is it possible for parties to agree to release either or both from duty to disclose frankly

Answer 34

no- gohil

Question 35

rule re self help disclosure (where applicant believes R is concealing assets and takes/copies docs belonging to R)

Answer 35

imerman- this is an actional breach of confidence, and may amount to a criminal offence such as theft or burglary

Question 36

what happens if applicant self helps to disclosure and provides these to solicitor

Answer 36

solicitor must not read, but must return them to R's solicitor with any copies. R's solicitor should read and disclose that which is relevant

Question 37

which form must parties complete re evidence

Answer 37

form e

Question 38

what does form e relate to

Answer 38

details of the parties, any children, means, capital and income needs, standard of living, contributions made to the family, conduct, and any other relevant circumstances

Question 39

what certain essential docs must be filed & served with form e?

Answer 39

(a) last three payslips and last P60 or, if self-employed or in partnership, a copy of the latest tax assessment; (b) bank/building society statements for the last 12 months for all accounts; (c) any property valuation obtained during the last six months; (d) most recent mortgage statement(s); (e) the last two years’ accounts for any business, and any documentation relating to a valuation of the business; (f ) valuation of any pension; (g) surrender value quotations for any life insurance policies; and (h) the latest statement or dividend counterfoil for any investments.

Question 40

when should form e be filed and exchanged

Answer 40

at least 35 days before first appointment

Question 41

what if one party's solicitor is ready to xchange but the other side is refusing to (form e)

Answer 41

solicitor who is ready should send a copy of form E to the court to prove compliance with FPR 2010. Solicitor could apply for without notice order that defaulting party should comply

Question 42

what should parties draft

Answer 42

(a) A concise statement of the issues. This will require the parties to focus on the real issues in the application. (b) A chronology. (c) A questionnaire of further information and documents requested from the other party. This must be drafted with reference to the issues raised in the statement of issues. In many cases it may be that Form E and the attachments leave no matters outstanding and, in these cases, the parties will file a statement that no further information and documents are required (under the Efficiency Statement this should not exceed four pages of A4). (d) A notice stating whether that party will be in a position at the First Appointment to proceed on that occasion to an FDR appointment. This will be the case where both parties feel that they have all the disclosure they need, and it allows a form of ‘fast tracking’ in these cases.

Question 43

when must 4 docus be filed and served

Answer 43

at least 14 days before the first appointment r9.14(5)

Question 44

what should be filed under efficiency statement

Answer 44

jointly obtained market appraisal valuation of the family home - if it is not possible to do this jointly, each party should file their own appraisal

Question 45

what should parties file (where possible) re 9.14(5)

Answer 45

(a) a summary of the case agreed between the parties; (b) a schedule of assets agreed between the parties; and (c) details of any directions they seek, including, where appropriate, the name of any expert they wish to be appointed.

Question 46

what should be filed one day before first appointment

Answer 46

(a) the solicitors for both parties must file and serve a written estimate of the costs incurred so far and those estimated to be incurred by the FDR in Form H. Note that this is something separate from the statement of costs required by the CPR 1998 (see 10.11.2). Thus, if the solicitor wishes to claim the costs of the First Appointment, they must complete and serve a statement of costs at least 24 hours before the hearing; and (b) under the Efficiency Statement the applicant must file a composite case summary using the Case Summary Template ES1 (see Appendix 3(L)) and a composite schedule of assets and income, based on the figures in the parties’ Forms E using the Assets and Income Template ES2 (see Appendix 3(M)). Note that the relevant values of the income, assets and liabilities do not need to be agreed as the relevant columns of the ES2 provide for the applicant and the respondent to enter separate figures.

Question 47

when do courts fix a date for first appointment

Answer 47

when applicant files form a

Question 48

what will judge direct at first appointment

Answer 48

The directions will deal with: (a) the extent to which the questionnaires need to be answered; (b) documents to be produced; (c) valuations or other expert evidence (joint independent experts should be instructed wherever possible). Part 25 of the FPR 2010 deals with experts, and under r 25.7, the court can direct evidence to be given by a single joint expert; (d) the production of other evidence, such as schedules of assets or, in some cases, affidavits.

Question 49

considerations that may arise at first appointment

Answer 49

valuation of the home valuation of the family business new partners pensions (likely to direct completion of form p) millionaires defence

Question 50

what is a millionaires defence

Answer 50

R seeks to claim that they need not give detailed disclosure on the basis that they are so wealthy they can meet any reasonable order the court may make

Question 51

what will district judge do (unless first appointment was treated as an FDR appointment)

Answer 51

(a) that a further directions appointment be fixed; (b) that an appointment be fixed for an interim order; (c) that the case be fixed for a final hearing; or (d) that the case be adjourned for mediation or negotiation.

Question 52

what should applicant inform the court of 7 days before FDR?

Answer 52

all offers or proposals made to them

Question 53

aim of FDR

Answer 53

produce a settlement

Question 54

what happens if a settlement is reached at FDR

Answer 54

district judge may make a consent order reflecting agreement or adjourn to allow one or both parties time to consider their position

Question 55

what if no agreement is reached at FDR

Answer 55

judge may make further directions (either setting a hearing date and timetable for hearing)

Question 56

what if no further FDR is directed

Answer 56

each party must file and serve open proposals for settlement within 21 days or by such date as teh court directs

Question 57

what must be filed before final hearing

Answer 57

draft statement of proposed orders statement of costs (H1) updated composite case summary ES1 composite schedule of assets and income ES2 composite chronology recording key dates of parties relationship and litigatiojn

Question 58

when is a fast track procedure used

Answer 58

periodical payment order only variation of periodical payment order on a1

Question 59

r9.27 FPR

Answer 59

each party not less than one day before every hearing, file and serve a written estimate of costs in form H

Question 60

what should be filed re costs at least 14 days before final hearing

Answer 60

written statement of costs in Form H1

Question 61

what was suggested in jvj

Answer 61

fixed fees for each stage of financial remedy proceedings, and imposition of a cap on costs by the court

Question 62

where are costs rules set out

Answer 62

r28.3 FPR

Question 63

general rule re costs order

Answer 63

courts will not make one unless it is justified by litigation conduct

Question 64

MF vs SF

Answer 64

court departed from equality due to wifes litigation conduct (wide unreasonably incurred grossly disproportionate costs)

Question 65

what will the courts take into account in deciding whether to make a costs order

Answer 65

any failure to comply with rules, court order, or practic direction the court considers relevant an open offer to settle whether it was reasonable for a party to raise, pursue, or contest a particular allegation /issue any other aspect of a party's conduct in relation to the proceedings which the court considers relevant financial effect on the parties of any costs order

Question 66

PD28A

Answer 66

court will take ‘a broad view of conduct’ and ‘will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs’

Question 67

what should the solicitor do once parties have reached an agreement

Answer 67

draw up a consent order, and send to R's solicitor

Question 68

what should be completed alongside consent order

Answer 68

statement of info form d81

Question 69

what will judge do if satisfied with the consent order

Answer 69

make an order in the agreed terms

Question 71

what should a LSO indicate

Answer 71

by whom it is payable to whom it is payable by what date/contingency it is to be paid