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Financial Remedies Practice (2022-2023) thumbnail image

Financial Remedies Practice is firmly established as the essential, specialist reference for all family financial remedy practitioners.

Cited and used in courts every day, this unique book combines in a single portable volume authoritative Commentary on financial remedies practice and procedure together with the full and up-to-date text of the relevant Family Procedure Rules and Practice Directions.

The Commentary is written by the team responsible for At A Glance so you can be confident that the guidance is current, trusted and insightful.

Crucially, and unlike other books on the topic, Financial Remedies Practice provides unrivalled coverage of myriad decisions and developments under the CPR that now mirror many of the key aspects of financial remedies practice, such as injunctions, relief from sanctions, costs and general case management.

This breadth of coverage and the expertise of the authors means that Financial Remedies Practice should be on the shelf in every family law library.

What's new for 2022-23?

This 11th edition incorporates all the significant developments of the last 12 months. In particular, the Commentary on the Financial Remedies Court has been substantially rewritten to reflect the promulgation of a number of important pieces of procedural guidance, notably the FRC Efficiency Statement and its new compulsory ES1 and ES2 templates issued in January 2022, updated guidance on e-bundles, and three items of Presidential Guidance, on Drafting Orders, Experts in the Family Court and Witness Statements. The implications of these documents for practitioners are discussed in detail in the text.

The Commentary analyses the key case law of the last 12 months, which includes decisions in the area of arbitration, anonymisation of judgments, executory orders (the Thwaite jurisdiction), and several additions to the increasing body of case law on costs in financial remedy cases.

ISBN: 9-781-85959-997-6 | Paperback | Published May 2022

ISBN: 9-781-85959-996-9 | Digital | Published May 2022

Undoubtedly the best and most useful textbook on Financial Remedy work. Focused, practical and extremely user friendly.

James Roberts QC, 1 Kings Bench Walk Chambers

The book’s strongest point is the sheer level of detail and analysis on the application of the FPR 2010. This exceeds that set out in the Red Book.

Andrew Newbury, Hall Brown, writing for the Law Gazette​

v Updates

vii Preface to the Eleventh (2022–23) Edition

xi Family Procedure Rules 2010: Outline of Provisions

xv Contents

COMMENTARY ON THE FINANCIAL REMEDIES COURT

COMMENTARY ON COVID-19

PART 1: OVERRIDING OBJECTIVE

PART 2: APPLICATION AND INTERPRETATION OF THE

RULES

PART 3: NON-COURT DISPUTE RESOLUTION

PART 3A: VULNERABLE PERSONS: PARTICIPATION IN

PROCEEDINGS AND GIVING EVIDENCE

PART 4: GENERAL CASE MANAGEMENT POWERS

PART 5: FORMS, START OF PROCEEDINGS AND

COMMUNICATION WITH THE COURT

PART 6: SERVICE

PART 7: PROCEDURE FOR APPLICATIONS IN

MATRIMONIAL AND CIVIL PARTNERSHIP PROCEEDINGS

PART 8: PROCEDURE FOR MISCELLANEOUS APPLICATIONS

PART 9: APPLICATIONS FOR A FINANCIAL REMEDY

PART 15: REPRESENTATION OF PROTECTED PARTIES

PART 17: STATEMENTS OF TRUTH

PART 18: PROCEDURE FOR OTHER APPLICATIONS IN

PROCEEDINGS

PART 19: ALTERNATIVE PROCEDURE FOR APPLICATIONS

PART 20: INTERIM REMEDIES AND SECURITY FOR COSTS

PART 21: MISCELLANEOUS RULES ABOUT DISCLOSURE

AND INSPECTION OF DOCUMENTS

PART 22: EVIDENCE

PART 23: MISCELLANEOUS RULES ABOUT EVIDENCE

PART 24: WITNESSES AND DEPOSITIONS GENERALLY

PART 27: HEARINGS AND DIRECTIONS APPOINTMENTS

PART 28: COSTS

PART 29: MISCELLANEOUS

PART 30: APPEALS

PART 32: REGISTRATION AND ENFORCEMENT OF ORDERS

PART 33: ENFORCEMENT

PART 34: RECIPROCAL ENFORCEMENT OF MAINTENANCE

ORDERS

PART 36: TRANSITIONAL ARRANGEMENTS AND PILOT

SCHEMES

PART 37: APPLICATIONS AND PROCEEDINGS IN RELATION

TO CONTEMPT OF COURT

PART 39: ATTACHMENT OF EARNINGS

PART 40: CHARGING ORDER, STOP ORDER, STOP NOTICE

PART 41: PROCEEDING BY ELECTRONIC MEANS

Preface to the Eleventh (2022–23) Edition

Since the publication of the previous edition of this work, there has been a near absence of legislation relating to family law emanating from the Government. A notable exception is the Domestic Abuse Act 2021 – the provisions of which relating to vulnerable witnesses are discussed in the Commentary on Part 3. At the time of writing this Preface, we await with eager anticipation the coming into force on 6 April 2022 of the Divorce, Dissolution and Separation Act 2020, sweeping away 165 years of blame, recrimination and defended divorces.

While Parliament may have been marking time on financial remedies, still resisting all attempts to reform the substantive law, there has been a deluge of directives, guidance, pronouncements and proposals emanating from the judges and the various Rule Committees. The dominant watchword is efficiency.

This edition opens with a substantially rewritten Commentary on the Financial Remedies Court (happily renamed without the previous final ‘s’) introducing the 2022 FRC Efficiency Statement (Part 9) – extending to the vast majority of cases, being all those not allocated to a High Court Judge; a new discipline in line with, but somewhat different from, that applicable to the ivory tower cases covered by the 2016 HC Efficiency Statement.

The trend is away from the bespoke handmade suit of Savile Row and towards the one-size-fits-all of a velour jumpsuit from Walmart. Cases to which the 2022 FRC Efficiency Statement applies are to adopt a standard form Schedule of Assets (in Form ES2) to supplement the standard form Composite Case Summary (in Form ES1), to which must be added the requirement to provide a jointly obtained marketing appraisal of the family home and alternative property particulars (limited to three) and a four-page limit on questionnaires. Revised FRC Primary Principles replace the former Good Practice Protocol. All financial cases will in future be allocated at the earliest opportunity to an individual judge, who will either conduct the case up to a final hearing excluding the financial dispute resolution (FDR), or up to and including the FDR in which event it will be reallocated for any hearings following an unsuccessful FDR. FDRs will be listed for 60–90 minutes, but the parties and their lawyers are to be available for the whole day to allow for negotiations. Updated versions of Case Summary Templates ES1 and ES2 are to be filed prior to the FDR, together with a composite chronology, in relation to which the parties must collaborate. Deprived of two popular forms of advocacy – asset schedules and case summaries – practitioners will, no doubt, seek and find new ways to make old points, but judges will at least know what they are looking at when they see the asset schedule. Pre-trial reviews will be routinely fixed for all cases listed for 3 or more days.

COVID-19 continues to exert a, albeit seemingly less confident, hold on society as a whole and the court system in particular, with remote hearings still the norm for procedural hearings such as first appointments and many others beside. Individual judges are to have control over which hearings are remote and which in person, with no national or formal guidance.

Unsurprisingly, e-bundles and digital working generally has been given another makeover (see Part 27) with new ‘General Guidance’ on e-bundles including such remarkable innovations as that pagination should be continuous rather than restart in each section. It may come as a shock to some to learn that the bundles must be OCRed so as to be searchable, that the pages must be correctly orientated landscape or portrait and, specifically, that they may not be upside down. Hugely welcome is the directive that additions to a bundle can only be made at the end, and not inserted.

In other news, the aftershocks of Haley (challenge to an arbitration award in a financial remedy case) are the subject of further guidance discussed in Part 3. The Commentary on Part 4 discusses the unexpected renaissance and subsequent rapid demise of the Thwaite principle that an order which remains executory can be varied by the court. Parts 5 and 29 include discussion of the President’s memorandum on the drafting of orders, including the requirement for orders to be drawn up on the day of the hearing, or in any event no more than 2 working days later, and for the next hearing to be fixed and the date stated in the order.

Form D81 (information for a consent order) has been radically revised to enable the court more easily to understand the effect of the order it is being asked to make (Part 9).

Part 20 is updated with discussion of ‘imaging orders’ relating to the duplication and preservation of digital media (i.e. hard disks and cloud-based digital storage) as a substitute in many cases for search orders, and of applications for security for costs in family cases.

Part 22 includes commentary on the President’s Memorandum on Witness Statements as summarised in the 2022 FRC Efficiency Statement, while Part 25 does the same for his Memorandum on Experts in the Family Court.

Part 27 foreshadows the possible ending of anonymity even at first instance in financial remedy proceedings, including commentary on the President’s report on Confidence and Confidentiality: Transparency in the Family Courts, and discussion of the diverse recent approaches of different judges to the anonymisation of financial cases. Reporters, and bloggers, are to have access not only to the hearings but also to the position statements and witness statements. Simultaneously the President announced a Consultation on transparency for financial remedy cases and the proposal for a ‘standard reporting permission order’. This in turn has led to the announcement on 11 February 2022 that a new FRC Transparency Group chaired by HHJ Farquhar will become the fifth sub-group of the main Transparency Implementation Group. The remit of this group will look beyond the previously conducted consultation, and further consultations will be undertaken. It remains to be seen whether this will lead to the opening up of all financial remedy cases to unanonymised publicity. Were it to do so it may well lead to greater uptake of arbitration and remove one inhibition on appeals from first instance decisions. On the other hand, it may encourage the making of florid or exaggerated allegations just at the time that such contention is about to eradicated from the divorce process itself. Time will tell whether the interests of justice are served by naming names, although the lawfulness of a general policy of anonymisation of money cases will need to be specifically addressed.

The law is generally as stated as at 1 December 2021.

Mr Justice Mostyn

Lewis Marks QC

Gavin Smith

Joshua Viney

Henrietta Boyle

London, April 2022

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Editors

Financial Remedies Practice (2022-2023) thumbnail image

Mr Justice Mostyn

Financial Remedies Practice (2022-2023) thumbnail image

Lewis Marks QC

Financial Remedies Practice (2022-2023) thumbnail image

Gavin Smith

Financial Remedies Practice (2022-2023) thumbnail image

Joshua Viney

Financial Remedies Practice (2022-2023) thumbnail image

Henrietta Boyle