The Family Proceedings (Amendment) (No. 5) Rules 2005

SCHEDULE 2

“Appendix 4 Appendix 4

rules 3.1(10), 3.5(1), 3.6(10), 3.8(13), 3.18(3) and (6), 3.19(5)

1.   In this Appendix a reference to a paragraph by number alone is a reference to a paragraph of this Appendix.

Representation of children on applications under Act of 1984 and under Schedule 7 to the Act 2004

2.— (1) Sub-paragraph (2) applies where, on an application for financial relief under Part III of the Act of 1984 or under Schedule 7 to the Act of 2004, an application is made for an order for a variation of settlement.

(2) The court must, unless it is satisfied that the proposed variation does not adversely affect the rights or interests of any children concerned, direct that the children be separately represented on the application, either by a solicitor or by a solicitor and counsel, and may appoint the Official Solicitor or other fit person to be guardian ad litem of the children for the purpose of the application.

(3) On any other application for financial relief under Part III of the Act of 1984 or under Schedule 7 to the Act of 2004 the court may give such a direction or make such appointment as it is empowered to give or make by sub-paragraph (2).

(4) Before a person other than the Official Solicitor is appointed guardian ad litem under this rule the solicitor acting for the children must file a certificate that the person proposed as guardian has no interest in the matter adverse to that of the children and that he is a proper person to be such guardian.

Evidence on application for financial relief or avoidance of transaction order under Act of 1984 or under Schedule 7 to Act of 2004

3.— (1) Where an application is made for financial relief or an avoidance of transaction order under Part III of the Act of 1984 or under Schedule 7 to the Act of 2004, the affidavit in support must contain, so far as known to the applicant, full particulars—

(a) in the case of an application for a transfer or settlement of property—

(i) of the property in respect of which the application is made, and

(ii) of the property to which the party against whom the application is made is entitled either in possession or reversion;

(b) in the case of an application for an order for a variation of settlement—

(i) of all relevant settlements, made on the spouses or civil partners, as the case may be, and

(ii) of the funds brought into settlement by each spouse or civil partner;

(c) in the case of an application for an avoidance of transaction order—

(i) of the property to which the disposition relates, and

(ii) of the person in whose favour the disposition is alleged to have been made,

and in the case of a disposition alleged to have been made by way of settlement, of the trustees and the beneficiaries of the settlement.

(2) Where an application for a property adjustment order or an avoidance of transaction order relates to land, the affidavit in support must identify the land and—

(a) state whether the title to the land is registered or unregistered and, if registered, the Land Registry title number; and

(b) give particulars, so far as known to the applicant, of any mortgage of the land or other interest in it.

(3) A copy of Form M26 or M27 as the case may be, together with a copy of the supporting affidavit, must, as well as being served on the respondent, be served—

(a) in the case of an application for an order for a variation of settlement, on the trustees of the settlement and the settlor if living;

(b) in the case of an application for an avoidance of transaction order, on the person in whose favour the disposition is alleged to have been made; and

(c) in the case of an application to which sub-paragraph (2) refers, on any mortgagee of whom particulars are given pursuant to that paragraph,and on such other persons, if any, as the district judge may direct.

(4) Any person who is served with an application pursuant to sub-paragraph (3) may within 14 days after service file an affidavit in answer.

(5) In this rule a relevant settlement—

(a) in relation to a marriage, is an ante-nuptial or post-nuptial settlement; and

(b) in relation to a civil partnership, is a settlement made during its subsistence or in anticipation of its formation, on the civil partners including one made by will or codicil, but not including one in the form of a pension arrangement (within the meaning of Part 4 of Schedule 5 to the Act of 2004).

Service of affidavit on application for alteration of maintenance agreement

4.— (1) This paragraph applies to an affidavit filed in support of an application under section 35 or 36 of the Act of 1973 or paragraphs 69 or 73 of Schedule 5 to the Act of 2004.

(2) This paragraph, apart from sub-paragraph (3), also applies to an affidavit filed in support of an application under section 27 of the Act of 1973 or Part 9 of Schedule 5 to the Act of 2004 which contains an allegation of adultery or of an improper association with a person named.

(3) Where a person files an affidavit to which this sub-paragraph applies he must at the same time serve a copy on the opposite party.

(4) Where an affidavit to which this paragraph applies contains an allegation of adultery or of an improper association with a named person (“the named person”) the court may direct that the party who filed the affidavit serve a copy of all or part of it on the named person together with Form F (the references to ancillary relief in that form being substituted by references to the provision under which the application is made).

(5) Where the court makes a direction under sub-paragraph (4) the named person may file an affidavit in answer to the allegations.

(6) The named person may intervene in the proceedings by applying for directions under paragraph 7(4) within seven days of service of the affidavit on him.

(7) Rule 2.37(3) applies to a person served with an affidavit under sub-paragraph (4) as it applies to a co-respondent.

Information on application for consent orders on application for failure to provide reasonable maintenance or for financial provision under Act of 1984 or Schedule 7 to Act of 2004

5.— (1) This paragraph applies to an application for a consent order—

(a) under section 27 of the Act of 1973 or Part 9 of Schedule 5 to the Act of 2004; and

(b) under Part III of the Act of 1984 or Schedule 7 to the Act of 2004.

(2) Subject to sub-paragraphs (3) and (4), there must be lodged with every application to which this paragraph applies two copies of a draft of the order in the terms sought, one of which must be indorsed with a statement signed by the respondent to the application signifying his agreement, and a statement of information (which may be made in more than one document) which must include—

(a) the duration of the marriage or civil partnership, as the case may be, the age of each party and of any minor or dependent child of the family;

(b) an estimate in summary form of the approximate amount or value of the capital resources and net income of each party and of any minor child of the family;

(c) what arrangements are intended for the accommodation of each of the parties and any minor child of the family;

(d) whether either party has subsequently married or formed a civil partnership or has any present intention to do so or to cohabit with another person;

(e) where the order includes provision to be made—

(i) under section 17(1)(a) of the Act of 1984 of a kind which could be made by an order under section 25B or 25C of the Act of 1973;

(ii) under section 17(1)(b) of the Act of 1984; or

(iii) under paragraph 9(2) of Schedule 7 to the Act of 2004 of a kind which could be made by an order under paragraphs 15, 25 or 26 of Schedule 5 to that Act,

a statement confirming that the person responsible for the pension arrangement in question has been served with the documents required by rule 2.70(11) and that no objection to such an order has been made by that person within 21 days from such service;

(f) where the terms of the order provide for a transfer of property, a statement confirming that any mortgagee of that property has been served with notice of the application and that no objection to such a transfer has been made by the mortgagee within 14 days from such service; and

(g) any other especially significant matters.

(3) Where an application is made—

(a) for a consent order for interim periodical payments pending the determination of the application; or

(b) for an order varying an order for periodical payments,

the statement of information required by sub-paragraph (2) need include only the information in respect of net income mentioned in sub-paragraph (2)(b).

(4) Where all or any of the parties attend the hearing of an application for financial relief the court may dispense with the lodging of a statement of information in accordance with sub-paragraph (2) and give directions for the information which would otherwise be required to be given in such a statement to be given in such a manner as it sees fit.

Investigation by district judge of application under section 27 of Act of 1973 or under Part 9 of Schedule 5 to Act of 2004

6.— (1) On or after the filing of a notice in Form M19 an appointment must be fixed for the hearing of the application by the district judge.

(2) An application for an avoidance of disposition order must, if practicable, be heard at the same time as any related application.

(3) Notice of the appointment must be given in Form M20 by the proper officer to every party to the application.

(4) Any party may apply to the court for an order that any person do attend an appointment (an “inspection appointment”) before the court and produce any documents to be specified or described in the order, the inspection of which appears to the court to be necessary for disposing fairly of the application to which it relates or for saving costs.

(5) No person shall be required by an order under sub-paragraph (4) to produce any document at an inspection appointment which he could not be required to produce at the final hearing of the application.

(6) The court must permit any person attending an inspection appointment pursuant to an order under sub-paragraph (4) to be represented at the appointment.

Further provision about certain applications

7.— (1) This paragraph applies to—

(a) an application under section 27 of the Act of 1973 or under Part 9 of Schedule 5 to the Act of 2004;

(b) an application under section 35 and 36 of the Act of 1973 or under paragraphs 69 and 73 of Schedule 5 to the Act of 2004;

(c) an application under section 17 of the Married Women’s Property Act 1882 or under section 66 of the Act of 2004;

(d) an application under section 33, 35 and 36 of the Family Law Act 1996 and applications for transfer of tenancy under that Act; and

(2) This paragraph, apart from sub-paragraph (3) also applies to an application for financial relief under Part III of the Act of 1984 or under Schedule 7 to the Act of 2004.

(3) At the hearing of an application to which this paragraph applies the district judge must, subject to paragraphs 8 and 9(5) and rule 10.10 investigate the allegations made in support of and in answer to the application, and may take evidence orally and may at any stage of the proceedings, whether before or during the hearing, order the attendance of any person for the purpose of being examined or cross-examined and order the disclosure and inspection of any document or require further affidavits.

(4) The district judge may at any stage of the proceedings give directions as to the filing and service of pleadings and as to the further conduct of the proceedings.

(5) Where any party to such an application intends on the day appointed for the hearing to apply for directions, he must file and serve on every other party a notice to that effect.

(6) Subject to any directions given by the court, any party to an application to which this sub-paragraph applies may by letter require any other party to give further information concerning any matter contained in any affidavit filed by or on behalf of that other party or any other relevant matter, or to provide a list of relevant documents or to allow inspection of any such document, and may, in default of compliance by such other party, apply to the district judge for directions.

Order on certain applications

8.— (1) This paragraph applies to—

(a) an application under section 27 of the Act of 1973 or under Part 9 of Schedule 5 to the Act of 2004;

(b) an application under section 35 and 36 of the Act of 1973 or under paragraphs 69 and 73 of Schedule 5 to the Act of 2004;

(c) an application under section 17 of the Married Women’s Property Act 1882 or under section 66 of the Act of 2004;

(2) Subject to paragraph 9(5) the district judge must, after completing his investigation under paragraph 7, make such order as he thinks just.

(3) Pending the final determination of the application, the district judge may make an interim order upon such terms as he thinks just.

(4) RSC Order 31, rule 1 (power to order sale of land) shall apply to applications to which this rule applies as though that application were a cause or matter in the Chancery Division.

Arrangements for hearing applications etc by judge

9.— (1) This paragraph applies to

(a) an application under section 27 of the Act of 1973 or under Part 9 of Schedule 5 to the Act of 2004;

(b) an application under section 35 of the Act of 1973 or under paragraphs 69 of Schedule 5 to the Act of 2004;

(c) an application under section 17 of the Married Women’s Property Act 1882 or under section 66 of the Act of 2004.

(2) This paragraph, apart from sub-paragraphs (5), (8), (9) and (10), applies to an application under section 24 of the Act of 1984 or under paragraph 17 of Schedule 7 to the Act of 2004 for an order preventing transactions.

(3) Sub-paragraphs (5) to (7) of this paragraph apply to an application under section 36 of the Act of 1973 or under paragraph 73 of Schedule 5 to the Act of 2004;

(4) Sub-paragraphs (6) and (7) of this paragraph apply to an application for financial relief under the Act of 1984 or under Schedule 7 to the Act of 2004.

(5) The district judge may at any time refer an application of a kind referred to in sub-paragraph (1), or any question arising thereon, to a judge for his decision.

(6) Where an application of a kind mentioned in sub-paragraph (1), (2) or (3) is referred or adjourned to a judge, the proper officer must fix a date, time and place for the hearing of the application or the consideration of the question and give notice of that date to all parties.

(7) The hearing or consideration must, unless the court otherwise directs, take place in chambers.

(8) In an application under the Married Women’s Property Act 1882 or under section 27 or 35 of the Act of 1973, where the application is proceeding in a divorce county court which is not a court of trial or is pending in the High Court and proceeding in a district registry which is not in a divorce town, the hearing or consideration shall take place at such court of trial or divorce town as in the opinion of the district judge is the nearest or most convenient.

(9) In an application under section 66 of the Act of 2004 or under Part 9 or paragraph 69 of Schedule 5 to the Act of 2004, where the application is proceeding in a civil partnership proceedings county court which is not a court of trial or is pending in the High Court and proceeding in a district registry which is not in a dissolution town, the hearing or consideration shall take place at such court of trial or dissolution town as in the opinion of the district judge is the nearest or most convenient.

(10) For the purposes of sub-paragraph (8) and (9) the Royal Courts of Justice shall be treated as a divorce town or a dissolution town, as the case may be.

(11) In respect of any application referred to him under this rule, a judge shall have the same powers as a district judge has under paragraph 7(4).”