FREE CHAPTER from ‘A Practical Guide to Spousal Maintenance – Second Edition’ by Liz Cowell

CHAPTER FOUR – THE STATUTE AND THE RULES

The rules dealing with applications for periodical payments of maintenance are set out in the Family Procedure Rules 2010 (“FPR 2010”).

The FPR 2010 directs the Court to exercise an overriding objective which is in line with the Civil Procedure Rules. Rule 1.1 (2) directs the Court to ensure it is “dealing with a case justly so far as practicable by:

  • ensuring that it is dealt with expeditiously
  • dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues
  • ensuring that the parties are on an equal footing.
  • saving expenses
  • allotting to it an appropriate share of the Court’s reasonable resources, while taking into account the need to allot resources to other cases.”

In accordance with Rule 1.4 the Court has a duty to actively manage cases.

Orders for Maintenance Pending Suit and periodical payments of maintenance, in addition to capital provision have been known as Financial Orders since the Family Courts were established on 22nd April 2014. This followed the enactment of the Crime and Courts Act 2013 rather than “Ancillary Relief Orders,” which is now an obsolete term.

A Financial Order is obtained by applying for a financial remedy (see Rule 2.3 (1)).

Applications for periodical payments (a financial remedy) are made in the Family Court with the exception of applications made under the Inheritance Act 1975 where the High Court retains jurisdiction. This allows for an application to be made against the estate of a deceased spouse for maintenance provision. This can be particularly useful if there is a delay in the administration of an estate. It is (as previously mentioned) a remedy that is also available to cohabitees who can prove dependency at the date of death. It is not necessary for a spouse to prove dependency.

Financial Remedy is dealt with in Part (II) of the MCA 1973.

Section 21 directs the applicant, who is a party to the marriage or civil partnership, in connection with divorce, nullity or judicial separation, to make applications under Section 22 for Maintenance Pending Suit and Section 23 for periodical payments.

If there are no proceedings pending to terminate the relationship, Section 27 may be relied on, as long as there is proof of neglect by one party of the other, to provide reasonable maintenance.


Procedure

Part 9 of the Family Proceedings Rule 2010 (FPR 2010) deals with all applications for financial remedy in the Family Court.

The legislation to deal with financial remedy for the Magistrates sitting in the Family Court remains the Domestic Proceedings and Magistrates Court Act 1978 (“DPMA 1978”). The procedure to make such an application is set out at Part 9.18 – 23 of the FPR 2010.

Applications to the Magistrates are made on Form A1. A financial statement on Form E1 is filed with the Court. The grounds for making such an application are:

  1. Failure to provide reasonable maintenance
  2. The behaviour of the Respondent
  3. The desertion of the Applicant by the Respondent.

As well as making an order for periodical payments and maintenance, the Magistrates have the power to order lump sum payments up to £1,000.00. They also possess the power to make interim orders.

An application pursuant to the DPMCA 1978 is not dependent on a petition for divorce, nullity or dissolution of a civil partnership.

Together with the provisions made under Section 27 of the MCA 1973, this provides a way forward when maintenance is an immediate need, funds are limited, and a small amount of capital is necessary to progress towards divorce. An application for a legal services order can also be issued at this stage.


Applications on Form A

An application for periodical payments pursuant to the MCA 1973 is made on Form A which includes the information indicating what (if anything) has been done to comply with the pre-application protocol that requires the parties to consider Alternative Dispute Resolution (ADR).


Alternative Dispute Resolution (ADR) and MIAMS

The Form A requires a signed statement from a mediator to confirm that the case is not fit for mediation. The form is known as a MIAMS form. This is because the first meeting with a mediator is often called a Mediation Information and Assessment Meeting, hence MIAM. While every mediator consulted will work to try and explore the possibility of mediation with the Applicant, a MIAM meeting frequently ends the process with the completion of the certificate at paragraph 4 of Form A. Exemptions from such a meeting are set out in paragraph 3. They include cases where the Applicant has been a victim of domestic violence from the Respondent; cases where one party is overseas or unable to travel to mediation; and other cases of urgency.

Mediation is not the only form of ADR available.

Arbitration

The parties can also enter into Arbitration. (The Institute of Family Law Arbitrators may be contacted at www.ifla.org.uk). Arbitration commences when the parties enter into an agreement to appoint an Arbitrator to adjudicate a dispute and make an award. The parties may decide with the Arbitrator which disclosure is necessary to resolve a dispute; at which location/venue a hearing will take place, on which date and time it will be held. It is a much quicker process than regular Court proceedings, and an Arbitrator may be asked to deal with periodical payments or maintenance pending suit very quickly. Once an Arbitrator is appointed the parties are bound by his or her findings and the award made. The order is then lodged, with a draft order at the Court if divorce proceedings are pending.

The procedure for lodging an Arbitrator’s award is set out in the case of S -v- S [2014] EWHC7 (FAM), a decision of Sir James Munby (P) and his practice guidance of 23rd November 2015.

If proceedings on Form A have already been issued, the Court will stay those proceedings to allow for an Arbitration award to be made and the Court will process a Consent Order reflecting an award, using the same procedure to turn a collaborative agreement into an order.

 

Collaborative Agreements

This is a process whereby the parties sign a Partnership Agreement with each other and their respective collaborative lawyers to resolve their financial proceedings through four-way meetings. If the meetings fail, then the collaborative lawyers cannot continue to act. This is due to the open nature of the meetings, when both parties will need to have been open and honest with many discussions conducted Without Prejudice. Across the jurisdiction there are pods of collaborative lawyers, some of whom are achieving a high rate of success. There are great advantages to the parties in using this process, which may not only be utilised to resolve maintenance but also to enable capital provision.

If ADR is not being followed, on issuing Form A, a Notice on Form C should be sent to the parties or their solicitors, giving directions for filing a detailed financial statement on Form E, and filing a Schedule of Issues, Chronology and Questionnaire. It will also provide the parties with a date for a First Directions Appointment (FDA), and in some Courts, a later hearing for a Financial Dispute Resolution hearing (FDR).

Costs

It is important to note that there is usually a no order as to costs rule which applies in financial remedy proceedings. It is set out in Rule 28.3 FPR 2010 and is supplemented by Practice Direction 28 A. It is the case that Rule 28 1.2 provides that Parts 44 (except 44.2 (2) and (3) and 44.10 (2) and (3), 46 and 47 and Rule 458 of the Civil Procedure Rules (CPR) apply to costs in family proceedings.

The effect of these rules is to exempt financial remedy proceedings from the usual cost rules. However Rule 28 3.4 (i) specifically includes Maintenance Pending Suit; Interim Periodical Payments Orders; and Orders in respect of Legal Services or any other form of interim order for the purpose of Rule 9.7 (1) (a) (b) (c) and (e).

Costs may be pursued for these interlocutory applications, and may also be pursued in later proceedings for enforcement.


Costs where there has been litigation misconduct, including failure to negotiate

In the case of OG-v-AG (Financial remedies: conduct) [2020] EWFC 52

the Court reminded the parties that litigation misconduct should be severely penalised in costs. In this case the wife was awarded 45% of her costs by Mostyn J because of the husband’s failure to provide proper disclosure. However, in this case Mostyn J also emphasised that a costs penalty can be imposed by the Court where a party fails to negotiate in a reasonable fashion: hence the wife only received 45%:

Mostyn J: “…if, once the financial landscape is clear, you do not openly negotiate reasonably, you will likely suffer a penalty in costs.”

(See revised para 4.4 of FPR PD28A).

This revision was reviewed and applied by HHJ Edward Hess in T-v-T [2021] EWFC B67. Accordingly, there is a greater onus on practitioners to fully explain the current costs rules and warn the parties about litigation misconduct.

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