Family analysis: The President of the Family Division, Sir James Munby, has published his 17th View from the President’s Chambers setting out where we are and what needs to be done to de-link divorce from financial proceedings.
The President of the Family Division, Sir James Munby, has issued his 17th View from the President’s Chambers, as to the separation of divorce and financial proceedings. The President sets out the urgent need for a pilot of specialist financial courts, arguing that the time has come to bring about a complete separation of divorce and financial proceedings. He also suggests that the Family Court should be given a shared jurisdiction with the Chancery Division and the County Court for dealing with disputes under the Inheritance (Provision for Family and Dependants) Act 1975 and the Trusts of Land and Appointment of Trustees Act 1996.
Why is the separation of the divorce and financial proceedings necessary?
The President sets out the reasons that drive his conclusion that the separation of divorce and financial proceedings is required:
- only a minority of divorce cases give rise to a financial claim
- divorce, as a process, is largely administrative and bureaucratic with limited judicial involvement in the process (see Owens v Owens  EWCA Civ 182,  All ER (D) 23 (Apr)) and, unless the petition is defended, involves no face-to-face contact with the parties, in contrast to judicial involvement in financial claims, and
- the concentration of divorce cases in a limited number of regional divorce centres, as the prelude to a completely on-line system, is putting the administration of financial proceedings under unnecessary and avoidable strain
He highlights that ancillary relief is only one of the various types of financial remedy that are dealt with in family courts—others (see the definition in the Family Procedure Rules (FPR 2010), SI 2010/2955, 2.3) include claims under:
- Part III of the Matrimonial and Family Proceedings Act 1984
- Schedule 1 to the Children Act 1989
- the Inheritance (Provision for Family and Dependants) Act 1975, and
- the Trusts of Land and Appointment of Trustees Act 1996
What steps have been taken to de-link divorce and financial proceedings?
The President refers to the administrative de-linking of financial proceedings from divorce proceedings pilot that was launched on 2 May 2017—see ‘Administrative de-linking of financial proceedings from divorce proceedings to be piloted’ (LNB News 02/05/2017 101). In his 17th View, the President notes that in relation to the pilot:
‘Although these are early days, this seems to be going well. The next step is to move toward formal (legal) de-linking. With one exception (see below) none of the proposed ‘money’ reforms requires primary legislation: it can all be achieved by changes to the FPR, to Practice Directions and to forms.’
Will the separation of divorce and financial proceedings be delayed until ‘no-fault’ divorce is introduced?
In an ideal world, the President considers it would be better to delay full implementation of on-line divorce until we know what shape the reformed divorce law might take. However, in the absence of a clear decision from government on divorce law reform following the decision in Owens v Owens  EWCA Civ 182,  All ER (D) 23 (Apr), proposals to separate divorce and financial proceedings will proceed on the basis of the existing statutory regime.
What stage has the on-line divorce project reached?
On-line divorce must be more than a simple electronic version of the existing processes. The President states in his 17th View:
‘The on-line divorce project has now reached the stage where, before it can sensibly move forward much further, we need to undertake a questioning and challenging look at the existing processes and procedures to identify what amendments to the FPR, forms, etc, are appropriate. In addition to the implementation of these wide-ranging reforms in relation to money claims, there is also a need to implement those of the specific, though nonetheless important, reforms proposed by the Financial Remedies Working Group which remain outstanding.’
Will there be changes to the court structure?
Building on the geographical reorganisation of the Family Court in 2014, the judicial leadership and management structures put in place for financial cases in the Central Family Court and the Family Division, and the recent changes as a result of the regionalisation of the Court of Protection, the President says that there is an urgent need to begin implementing, initially by way of pilots followed by more general roll-out, the plans for specialist financial remedies courts as first suggested by HHJ Edward Hess and Joanna Miles in November 2016 in The recognition of money work as a specialty in the family courts by the creation of a national network of Financial Remedies Units ( Fam Law 1335).
What are the next steps?
The President sets out the next steps as follows:
- the on-line divorce project must proceed as fast as sensibly possible
- the roll-out of administrative de-linking must likewise proceed as fast as sensibly possible
In addition, by the end of 2017, all necessary amendments to FPR 2010 and the relevant forms should have been agreed, ready for implementation, no later than January 2018, incorporating:
- the remaining recommendations of the Financial Remedies Working Party
- all aspects of on-line divorce
- formal/legal de-linking of divorce and ancillary relief, and
- if amendments are required, specialist financial remedies courts
Further steps are that:
- work must proceed for the initial roll-out, as soon as sensibly possible in late 2017 or very early 2018, of the first pilot specialist financial remedies courts, and
- once the first tranche of work above has been completed, work must proceed as rapidly as possible on all necessary amendments to FPR 2010, and forms to enable all financial claims to be dealt with in accordance with a single set of rules providing, so far as possible, for a common form of application, a common set of forms, a common process and common procedure
The President anticipates that this work can be completed by Spring 2018, particularly if, as may well be desirable, an expert group is tasked to produce the necessary drafts.
Does the 17th View refer to any other issues?
The President refers to the practice that has arisen of issuing applications under the Inheritance (Provision for Family and Dependants) Act 1975 or the Trusts of Land and Appointment of Trustees Act 1996 in the County Court and then inviting the district or circuit judge to sit for that purpose in the County Court, while at the same time sitting in the Family Court (often in a separate building) to deal with any related financial claims arising on divorce. The President refers to this as ‘nonsense’ and assumes that this point was overlooked by the draftsman of Schedule 11 to the Crime and Courts Act 2013. The solution is to amend section 25(1) of the Inheritance (Provision for Family and Dependants) Act 1975 and section 23(3) of the Trusts of Land and Appointment of Trustees Act 1996, as recommended by Sir Michael Briggs in his Civil Courts Structure Review: Final Report in July 2016. These recommendations were rejected by government without adequate explanation and the President urges the government to reconsider.
Kirstie Gibson, solicitor in the LexisPSL Family team.