Hang ups

The 'overriding objective' is a familiar principle to civil practitioners but has hitherto only applied in the family context to ancillary relief (financial order proceedings, to use the new jargon). It is now extended to cover all family cases but modified to include a reference to the court having regard to any welfare issues involved.

The court's case management powers are wide ranging, although they are to be exercised in the light of the overriding objective. This includes bringing forward or adjourning a hearing, deciding the order in which issues will be dealt with or to exclude issues altogether and requiring a party to attend court (rule 4.1(3)(e)) '“ and to conduct a hearing by telephone. Really?

PD18A puts the meat on the telephone. Maybe a visit to Primark will have to be sacrificed, but the savings in costs are potentially enormous. The court will normally look for consent to a telephone hearing from all parties; the applicant's legal representative will probably be directed to arrange the hearing, and, as under the CPR, one of the approved providers BT or Legal Connect will ordinarily have to be used.

That for which you do not ask, you may well not get. Therefore, an issuing solicitor is well advised to ask for a telephone hearing on issue of an application which may be suitable for that form of determination such as an application for an adjournment or for an order for further information '“ available under rule 7.15 to clarify any matter in dispute in matrimonial or civil partnership petition or answer.

It's actually in those proceedings for a matrimonial order (note the new global title for a decree of nullity, divorce or judicial separation), civil partnership dissolution or separation that the new rules are especially active. New forms must be used, although paragraph 1.2 says they may be modified as the circumstances require, which means, for example, if you are compiling your owntemplate divorce petition in form D8 which extends to divorce, judicial separation and civil partnership dissolution and separation, you can omit the non-divorce bits. The petitions are tickboxish and the guidance notes which will be issued with them are as comprehensive as a litigant in person and even some legal representatives could wish for.

The 'special procedure' list has gone but replaced by a scheme that could be mistaken for it at night. In an undefended case, the petitioner will apply in new form D84 for the court to consider making the order sought and, on the strength of a slightly rejigged supporting affidavit, the district judge will certify entitlement with a decree to be pronounced subsequently by a district (and so probably not a circuit) judge. Otherwise, the judge will direct further information or steps to be taken or list for a case management conference. In a defended case, a case management conference will be directed.

Matrimonial and civil partnership proceedings

Two important changes come in matrimonial and civil partnership proceedings. Costs in undefended cases will be decided on paper. The district judge will either certify entitlement to an order for costs if satisfied when dealing with the decree or make no direction about costs if not satisfied (rule 7.20(3)). If either party is unhappy with what they have or have not achieved costswise they may make representations at pronouncement stage as long as they have served notice on the other party of their intention to do so not less than two days before the pronouncement day (rule 7.21(2)).

The other change relates to defending. The respondent can file an answer as before but if simply after a cross-decree the respondent must present their own petition in the same proceedings which will be given the same case number. There then stands a high chance that the proceedings will be compromised on the basis that each party collects a decree.

In short, an answer is not mandatory in this situation but it is not inconceivable that a respondent will be advised to couple their own second petition with an answer to the first petition.

Financial remedies

The procedure for financial remedies in the High Court and county court (including a financial order which broadly equates to what we used to call ancillary relief) continues much as before but is extended, for example, to applications under schedule 1 to the Children Act 1989 and for alteration of maintenance agreements. Form E though has been updated and questionnaire replies must be verified by a statement of truth (PD9A).The new form A asks whether the applicant has attended a mediation information/ assessment meeting.

Financial remedy consent orders? The statement of information in support in form D81 has been revamped. More information than before; a statement of truth, and each party confirming that they have read the other's statement and made disclosure of all relevant facts. An undertaking for the payment of a sum of money is now capable of being enforced as if it were an order (PD33A). The undertaking must be endorsed in prescribed terms and accompanied by a signed statement by the undertaking party to the effect that he understands the undertaking and that if it is proved he had the means to pay and refused or neglected to do so then he may be sent to prison. Careful drafting is required from practitioners.

Statements of truth are to verify witness statements and statements of arrangements for children. Further, CPR procedure generally takes over in family enforcement and there is a cute new procedure for a payee to apply for such form of enforcement as the court may consider appropriate involving an order for the payer to be examined at his home court (probably by a district judge) and for the court to then make an attachment or charging order or whatever (rule 33.2(b)). Good luck.

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