New Rules in Family Law Proceedings

While the COVID-19 lockdown took effect and brought communities and high streets (almost) to a standstill, English and Welsh legislation kept moving on. On 6 April the Family Procedure (Amendment) Rules 2020 came into force (rules 10 to 14 came into force on 6 July 2020).

The Family Procedure Rules (FPR) 2010 were introduced via Statutory Instrument on 6 April 2011 (replacing the Family Proceedings Rules). The FPR are a set of rules which must be followed in family courts and family proceedings in England and Wales by litigants, family lawyers and all parties to the proceedings . The FPR contain governance for pre-action protocols, full practice directions and a set of Forms to enable standardisation of the handling of family law cases across the High Court, County Court and Magistrates’ Court.

Here we take a brief look at the 2020 amendments as they apply to disclosure of communications with the court, costs estimates in financial remedy proceedings and the making of settlement proposals.

Disclosure of communication with the court

The following changes apply to all family law proceedings including financial settlement on divorce proceedings.

  • FPR rule 5.7(1) provides that all communication (whether electronic or paper) between the parties and the court must be disclosed and copied to all other parties or their representatives (if a communication is not in writing it must be disclosed to all parties). However, rule 5.7(2) provides that this does not apply to routine, uncontentious or administrative communications or where another rule or practice direction permits (for example, ex parte applications).
  • Parties are not required to disclose a communication if there is a compelling reason, however, the reason must be stated on the communication – rule 5.7(3)
  • Rule 5.7(4) requires that communications must state the person(s) being copied in and their capacity in the proceedings. If not complied with, the court can return the communication without consideration. The court will include a brief explanation of the reasons for the return.
  • The court may also exercise its case management powers when returning unread communication under rule 5.7 which includes the power to strike out.

Costs estimates in divorce financial remedy cases

The new rules create stricter requirements for costs filings in financial remedy proceedings.

  • Costs estimates (substituted rule 9.27): prior to the hearing each party must file and serve an estimate of the costs incurred to the date of that hearing (as per Form H) and an estimate of the costs expected up to the next hearing, final hearing or post hearing.
  • Costs estimates must be verified by a statement of truth (Practice Direction 9A) and contain confirmation that they have been served on the other party.
  • If a party is represented by a family lawyer, the costs estimate must contain confirmation that the costs estimate has been discussed with the client.
  • Costs estimates must be signed and taken to the hearing
  • Rule 9.27 (points 1 to 4) state that costs estimates must be filed with the court and served to all parties at least 24 hours before the Financial Dispute Resolution appointment (FDR) and at least 24 hours before each further hearing until the final hearing, at which point costs estimates must be filed at least 14 days before.
  • Costs orders must contain recitals which record either each party’s estimates of their costs (current and future) or the failure to comply with the rule (in which case the court must order that cost estimates be filed or served within a specified time as recorded).

Financial settlement proposals

Litigants may be surprised to hear that new rule 9.27(A) requires parties to put forward settlement proposals 21 days after an unsuccessful FDR unless the court directs a different timeframe. (Many lawyers feel this is too soon and shows the courts’ appetite for early settlements). If no FDR has taken place, parties will be required to make an open proposal at least 42 days prior to the final hearing – rule 9.28.

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To find out how we may be able to help you and for contact details of our family law solicitors, please click through to our dedicated Family Law section.