Financial Order III PDF

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Summary

PROCEDURE FOR OBTAINING A FINANCIAL ORDERProcedure for Pre-App Must first attend MIAM App Petitioner-applicant makes formal app in prayer to petition Follows up formal app in petition by filing notice of intention to proceed in Form A Respondent-applicant makes app by filing Form A Potential danger ...

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PROCEDURE FOR OBTAINING A FINANCIAL ORDER Procedure for Pre-App Must first attend MIAM App Petitioner-applicant makes formal app in prayer to petition - Follows up formal app in petition by filing notice of intention to proceed in Form A Respondent-applicant makes app by filing Form A Potential danger areas: see pg. 127 Filing

Service

Filing and Service App must file at court: a) Form A duplicate b) Legal aid certificate + notice of issue (if relevant) c) Application fee d) Notice of acting where client received Legal Help in divorce + now has Family Help/Legal Rep Upon filing Form A: court will fix date (on Form C) for first appointment between 12-16 weeks ahead - Cannot be altered w/o court’s permission Court must file on R a copy of Forms A + C w/i 4 days of filing A must serv on R: a) Notice of issue of legal proceedings (if relevant) b) Copy of notice of actin (Legal Help divorce case only)

Pension

Form A must also be served on any lender/person responsible for pension arrangement mentioned in app Unless party has pension rights with valuation less than 12 months old at date of first appointment  must w/i 7 days of receiving notification of date of first appointment request one from pension arrangement - Party with pension rights must provide valuation w/i 6 weeks Obtaining Evidence

Disclosure Each party is under a duty of full + frank disclosure Ongoing Evidence: Both parties must complete + swear financial statement (Form E). Certain docs must be filled with form E: - Last 3 payslips and last P60 or (if self-employed) copy of last tax assessment; bank/building soc statement for the last 12 months for all accounts; any property valuation obtained during the last 6 months; most recent mortgage statement(s); last 2 years’ accounts for business + docs relating to business valuation; valuation of any pension; surrender value of quotations for any life insurance policies; last statement or dividend counterfoil for any investment. Court Hearing First Both parties + legal reps must attend Appointment Directions will deal with:

a) Extent to which questionnaire needs to be answered b) Docs to be produces c) Valuations/other expert evidence d) Production of evidence such as schedules of assets or affidavits Particular considerations that may arise: see pg. 132 a) Valuation of home b) Valuation of family business c) New partners d) Pensions e) ‘millionaire’s defence’

From First Appointment to FDR

FDR Appointment

From FDR to Final Hearing

Judge will give FDR appointment date unless FA has been treated as FDR appointment + has been effective OR an exceptional reason that makes FDR referral inappropriate. If latter must give one of the following directions: a) further directions appointment be fixed b) appointment be fixed for an interim order c) case be fixed for final hearing; or d) case adjourned for mediation/negotiation Both parties to comply with all directions Neither party can insist on further disclosure w/o court’s leave App must inform court of all offers/proposals + responses made to him min 7 days before FDR Immediately before FDR: both parties must produce second written cost estimate (Form H) Aim: to produce settlement - both parties + legal reps MUST attend Any offer made so far can be referred to at the FDR  even w/o prejudice offers Where agreement reached: - judge makes consent order reflecting arrangement Where no agreement reached: - judge must make further directions, incl. where app, setting hearing date Any directions made at FDR should be complied with  either party can apply for further directions + court may direct further FDR Before hearing: Both parties must draft statement of proposed orders, file this at court + serve it on other party - App: min 14 days before hearing; R: w/i 7 days of being served At least 14 days before hearing both parties must file + serve on other party statement of costs in Form H1

App’s sol to ensure relevant bundle of docs prepared + lodged with court min 2 working days before hearing Final Hearing Pg. 134 Less formal than normal court proceedings  held in private Interim Orders R9.7 FPR allows party to apply at any stage of proceedings for order for maintenance pending suit, IPPs or interim variation orders

- App made by application notice stating what order + why required - Verified by statement of truth On filing of notice  court gives hearing date which must be min 14 days later - A then immediately serves R with copy of app notice Costs VERY IMPORTANT: each party must produce to the court, at each court appointment, a written estimate of costs + at the final hearing, a written statement of costs - Adherence to overriding objective: costs must be kept proportional to the overall assets Cost Rules: set out in r28.3 FPR General: court will not make cost order in financial order proceedings, unless such an order is justified by the litigation conduct of one of the parties In deciding whether to make cost order on the basis of party’s litigation conduct, court takes into account: a) Any failure to comply with the rules, court order or any practice direction which court considers relevant b) Any open offer to settle made by a party c) Whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue d) Manner in which a party has pursued/responded to the app/a particulars allegation at issue e) Any other aspect of a party’s conduct in relation to the proceedings which the court considers relevant f) Financial effect on the parties of any cost orders Negotiations Generally: to be encouraged as - probably quicker + less expensive thus leaving more assets available to be divided - Less ill-feelings thus aiding parties’ future relationship - R more likely to comply with order to which they have agreed HOWEVER: client beware of settling at any price - Must be carried out with full knowledge of all material facts - Both parties under duty of full + frank disclosure Consent Orders Once parties agree  app’s sol should draft consent order + send it to R’s sol - Both may complete relevant info in one statement of info OR each may complete own - Party must sign statement of truth on any statement of info he completer Must then file statement(s) of info together with 2 copies of draft order sought (one of which must be endorsed by the R to signify agreement) Drafting Financial Orders Form of Order: pg. 138 Undertakings: pg. 138 Periodical Payments: pg. 139 Lump Sums: pg. 139 Property Adjustment Orders: pg. 140-141 Orders for Sale: pg. 141 - Where JOINT OWNERSHIP: S17 Married Women’s Property Act - to order simply that the trust of land be executed and the proceeds divided Pensions: pg. 141

Dismissal: pg. 141 Clean break Orders: pg. 141-142 Liberty to apply: pg. 142 Costs: pg. 142 Side-letters: pg. 142 ENFORCEMENTS, APPEALS, SETTING ASIDE AND VARIATION Methods of Enforcement Attachment R’s employer will deduct specific sum from earnings (sum = amount of maintenance of earning plus, possibly, proportion of arrears) - Order must also specify min amount (protected earning rate’) under which wage cannot fall Best way of enforcing PPO Warrant of Enables HC enforcement officer to seize + sell assets belonging to the R sufficient to meet outstanding debt control - sol applies to court for warrant + no hearing is needed Good for unpaid lump sums or substantial arrears of maintenance TP debt Enables app to receive payments direct from TP who owes the R money order - acc must be in R’s SOLE name - TP must be within jurisdiction - Proceedings: interim TPO will freeze the account + a ‘on notice’ hearing the court can make a finial TPDO which will req the TP to pay the app the outstanding amount Court can make order for sale to enforce (i.e.) a lump sum or secured PPO S24A MCA - This can be made at same time as original orders as type of precaution 1973 App can apply for charge land R owns/has interest in with outstanding amount Charging Order - App must apply for interim charging order which can be made final at hearing  further hearing is needed to obtain order for sale Judgement Under Debtors Act 1869 court can commit to prison R who has not paid PPO or lump sum order where: Summon a) The R has defaulted and b) The R has means to pay but is neglecting or refusing to do so Mubarak: necessary for app to provide evidence to show beyond reasonable doubt that R has means to pay Collection + Enforcement by the Child Maintenance Service Where by CMS parents can opt for payments through ‘Direct Pay’ (direct debit like) or ‘Collect + Pay’ (CMS collects from paying parents and pays to receiving parent) - Paying parent has to pay additional 20% on top of CM calculations; receiving parent has 4% deduced from maintenance payments before paid to them Property Adjustment Orders If R fails to execute docs req to effect property adjustment order then court has power to order the docs to be executed by another person Appeals Financial order S31K(1) Matrimonial and Family Proceedings Act 1894: appeals from decisions made by district judge lie to a circuit judge or HC judge sitting in the Family Court Permission to appeal must be obtained  may be sought at lower court at the hearing at which the decision to be appealed was made the appeal court in an

appeal notice Appeal notice must be filed at appeal court w/i 21 days unless lower court specifies different period Maintenance Where non-resident parents or person with care unhappy with amount  can ask for review of maintenance calc w/i 1 month of date of decision calculations Welfare benefits Generally reviewed internally on request Arbitral awards Can be challenged on the basis that arbitrator had no jurisdiction/serious irregularity Setting Aside (pg. 163-164) One party may attempt to have order set aside. Can only be made on these narrow grounds: a) Non-disclosure of material evidence b) Fraud c) Events occurring after order is made d) Lack of capacity Variations Types of court orders that can be varied Set out in S31(2) MCA 1973  see pg. 165 + 296 Can vary periodical payment order as long as it doesn’t state that it is a non-extendable one AS LONG AS app to court made before end of PPO Types of court orders that cannot be varied: Orders for capital provision usually cannot be varied. a) Lump sum orders cannot be varied unless they are payable by instalments, or orders in relation to a pension b) Transfer of property and settlement of property orders cannot be varied c) Pension sharing orders cannot generally be varied Factors to be considered on a variation: S31(7) MCA 1973 In considering this, court considers S31(7) (see pg. 298): 1) All the circumstances 2) Welfare of minors or children of the family 3) Any change in circumstances with regards to S25 factors a. HOWEVER only to the extent that it does not cause undue hardship (doesn’t have to be exceptional  have to show that it wasn’t possible + why) Procedure: pg. 168 Undertaking: Birch v Birch: court had no power to vary an undertaking CANNOT make parent sign an undertaking to exclude CMS - S9(3) and (4) CSA 1991: “any attempt to oust jurisdiction of the CMA is void”

PREP TASK In the Family Court Sitting at [Place]

No:

The Matrimonial Causes Act 1973 The Marriage of Myles Perdicue and Deborah Anne Perdicue, After hearing [name the advocate(s) who appeared] After reading the statements and hearing the witnesses specified in para x of the Recitals below ORDER MADE BY [NAME OF JUDGE] ON [DATE] SITTING IN OPEN PRIVATE BY CONSENT

The parties 1. The applicant is Myles Perdicue The respondent is Deborah Anne Perdicue Definitions 2. Children of the Family The “children of the family” are: a. Summer Perdicue born on 15.07.XXXX; and b. Romeo Purdiue born on 14.02.XXX; 3. Family Home The “family home” shall mean 24 Raven Road, Barton, Guidlshire, BA4 6QZ registered at HM Land Registry with title number GU139081. 4. “The mortgage” shall mean the mortgage secured upon 24 Raven Road in favour of Barton Building Society. 5. “The net proceeds of sale” shall mean the actual sale price of the property concerned (including any sum paid for fixtures and fittings) less the amount outstanding on the mortgage, the solicitors’ conveyancing costs, estate agents’ costs and any other costs in connection with the sale which have been agreed by the parties. 6. “The [insert company name] pension arrangement” shall mean the pension arrangement/plan held by [insert party] with [insert name of scheme/plan provider] with reference number [insert] Declaration Undertaking to discharge Liability  clause 35 The respondent shall discharge as when each payment becomes due, be solely responsible for and in any event indemnify the applicant against: a. the monthly repayments to Barton Building Society in respect of the mortgage agreement with them numbered PW/540097312 in respect of the family home; The payments shall continue from now and shall end on: a. the sale of the family home; ORDERS

Order for Sale  clause 55 The Family Home shall be sold forthwith on the open market for sale and the following conditions will apply: a. Messrs Collaws shall have the conduct of the conveyancing work relating to the sale; b. [insert name of estate agents]/[such estate agents as may be agreed between the parties or in default of agreement determined by the court] shall offer the property for sale; c. The Respondent is to continue paying the mortgage until sale; and d. the proceeds of sale shall be applied as follows: i. to discharge the Mortgage ii. in payment of the solicitors’ conveyancing costs and disbursements in connection with the sale; iii. in payment of the estate agents’ charges; iv. [in payment of any capital gains tax payable upon the sale]; v. in payment to the applicant of the lump sum of £205,000 and in payment of the balance to the respondent Periodic Payments  clause 71 The respondent shall pay to the applicant maintenance pending suit until the date of decree absolute and afterwards periodical payments. Payments shall be at the rate of £1,800 per annum, payable monthly in advance by standing order. Payments shall start on [insert date], and shall end on the first to occur of: a. the death of either the applicant or the respondent; b. the applicant’s remarriage; c. a further order; or d. [2 years] after which the applicant’s claims for periodical payments and secured periodical payments shall be dismissed, and it is directed that upon the expiry of the term: i. the applicant shall not be entitled to make any further application in relation to the marriage for an order under the Matrimonial Causes Act 1973 section 23(1)(a) or (b) for periodical payments or secured periodical payments; and ii. the applicant shall not be entitled on the respondent’s death to apply for an order under the Inheritance (Provision for Family and Dependants) Act 1975, section 2. However, the applicant may apply for an order to extend this term, provided the application is made before the term expires. Child Maintenance  clause 74 By agreement between the parties the respondent shall pay to the applicant periodical payments for benefit of the children of the family. Payments shall be at the rate of £4,265.82 per annum per child, payable monthly in advance by standing order. Payments shall start on [insert date], and shall end on: a. each child respectively attaining the age of 18 years or ceasing their fulltime tertiary education; or b. a further order. The court may (prior to the expiry of the term or subsequently) order a longer period of payment.

Costs  clause 96 There shall be no order as to costs Pension Sharing Order  clause 90 There shall be provision by way of a pension sharing order in favour of the applicant in respect of the respondent’s rights under her pension arrangement [as in definition – 20% share] in accordance with the annex[es] to this order, it being agreed between the parties that in the event of the [applicant]/[respondent] predeceasing the [respondent]/[applicant] after this order has taken effect but before its implementation the [respondent]/[applicant] shall have the [applicant’s]/[respondent’s] personal representative’s consent to an application for leave to appeal out of time against the terms of this order Clean Break Order  clause 95 Except as provided for in this order, the applicant’s claims for periodical payments orders, secured periodical payments orders, lump sum orders, property adjustment orders, pension sharing orders and pension attachment orders shall be dismissed, and he shall not be entitled to make any further application in relation to the marriage for an order under the Matrimonial Causes Act 1973 section 23(1)(a) or (b) and he shall not be entitled on the respondent’s death to apply for an order under the Inheritance (Provision for Family and Dependants) Act 1975, section 2 WORKSHOP TASK 1 1. Can Marianne Bailey apply to extend the duration of the maintenance payments beyond that stated in the order? If so, what are the chances of her success? Extendable (doesn’t say anything about being non-extendable) as long as she applies within timeframe (before the end of the consent order – 30 September XXXX). Court has power to vary periodical payment order under S31(2)(b) MCA 1973. In considering this, court considers S31(7) (see pg. 298): 1) All the circumstances 2) Welfare of minors or children of the family 3) Any change in circumstances with regards to S25 factors a. HOWEVER only to the extent that it does not cause undue hardship Here: 1) she is struggling to get a job (can show rejection letters) 2) children need someone who can support them 3) while we anticipated that she would have a job and she has genuinely tried  she simply couldn’t. Court likely to be very sympathetic 2. Can Marianne Bailey apply for a lump sum order to fund her course? If so, what are the chances of her success? No – clause 5 (clean break) of the consent order prevents her from making any further applications. 3. Can Patrick Bailey get the consent order varied in the way he wants? What would you advise Marianne are the chances of Patrick achieving any of his aims?

Waive rest of payment: Court has power to vary periodical payment order under S31(2)(b) MCA 1973. In considering this, court considers S31(7) (see pg. 298): 1) All the circumstances 2) Welfare of minors or children of the family 3) Any change in circumstances with regards to S25 factors a. HOWEVER only to the extent that it does not cause undue hardship Here: 1) He is going to get married  will have two incomes 2) Not in best interest of children Unlikely to be varied Split shares in Fairacre: Court does not have power to vary Mesher Order – S31(2)(e) applies to Mesher Orders but only with regards to judicial separation Order for sale of Fairacre: He can apply (property adjustment order has been made so an order for sale can be made). Court can order early sale under S24A HOWEVER unlikely as welfare of the children is paramount and S25 factors Binding promise not to involve CMS CANNOT make her sign this – S9(3) and (4) CSA 1991. Any attempt to oust jurisdiction of the CMA is void....