Guide to forms

It is a bumper holiday season for family lawyers this year. Father Christmas has crammed his sack full of early presents. The arrival of the Civil Partnership Act 2005 came earlier this month (see [2005] Gazette, 8 December, 24). This Act was implemented by the Family Proceedings (Amendment) (No 5) Rules 2005.


The rules brought other significant changes to the ancillary relief forms. The revised forms must be used on an application for financial relief brought on or after 5 December 2005. The filing of form A constitutes commencement of financial proceedings for the purposes of transitional provisions. Local knowledge indicates the Principal Registry will continue to accept the old style forms E until next March. The staff has yet to be trained to use the new-style document.


It is not possible to indicate the practice to be adopted by all other county courts, as this writer's research has elicited a miscellany of responses. A helpful member of staff in a northern court cheerfully volunteered the suggestion that it would be OK to use the old forms until the district judge picked up that the wrong one was on the file.


The rules and forms can be found on the Web site of the Office of Public Sector Information (www.opsi.gov.uk).


Dissolution of a civil partnership may give rise to a financial claim, and claims will be commenced in accordance with the existing ancillary relief procedure. Form E has undergone a radical change to facilitate claims under the Act. It has also been changed to ensure that rather more detailed information is supplied on pension provision, and property and business assets.


The requirement to provide detailed pension information has been reduced &150; presumably to reflect true practice rather than vain hope. How many times was the old-style pension information page completed with the words 'to follow'? Only basic information to include the type of scheme, its cash equivalent transfer value, and whether or not it is in payment, is needed. This is adequate in cases where pensions are not of significant consideration. If the information is not to hand when filing form E, there is now a requirement to produce a copy of the letter of request to the pension provider and an estimated date for production of the data.


However, at the first appointment, the district judge can direct any party to the proceedings to complete a pension inquiry form (rule 2.61D(2)(f)) &150; form P. This is a new five-page form, taking account of regulations 2, 3 and 4 of the Pensions on Divorce etc (Provision of Information) Regulations 2000, and rule 2.70(2) of the Family Proceedings Rules (FPR). It will be needed when a pension-sharing or pension-attachment order is contemplated.


The form will need to be completed by the pension arrangement. If it is to be disclosed as part of a voluntary process, or to shorten the court timetable, the policy-holder will need to sign the form to provide authorisation for release of information.


The pension-sharing annex (P1) has been improved in several ways. The date on which the pension-sharing order is to take effect is now stated as either from the date of decree absolute or nullity, or, if later, either 21 days from the date of the pension-sharing order (unless an appeal is lodged, in which case it is the date of determination of the appeal).


It also provides for the percentage of the pension share to be stated. It is the view of the pensions industry and of the government that, in England and Wales, pension-sharing orders must be expressed as percentages and not by using a formulaic approach. Many family practitioners consider that the P1 requirement reflects the wishes of the government and not the relevant legislation.


Form P2 is the new pension attachment annex that separates the three types of pension attachment order - namely, periodical payments, lump sum, and death benefits - into different boxes for clarity.


It should not be difficult to get to grips with the new-style form E; however, be warned - more information is now required on almost all assets, and a schedule of documents must be completed. In the event that your client has a business interest, it would probably be as well to line up business accountants at any early stage, so that they can familiarise themselves with the information required to be produced within the relevant time-scale.


The new-style form M1 invites parties to provide details of any other especially significant matters, confirm that the pension arrangement has provided the required information, and that there appears to be power to make a pension-sharing order. As with all the new forms, it has also been adapted to incorporate reference to civil partners.




Ancillary relief


Within the next few months, radical changes will be made to the FPR, revolutionising the way in which judges will approach cost claims in ancillary relief appli-cations. The new rules will not apply to applications under schedule 1 of the Children Act 1989, Trust of Land and Appointment of Trustees Act 1996, Married Women's Property Act 1876, or other family proceedings in this general class.


It is not considered likely that the rules would come into force until 1 March 2006. The reforms have been slow in their development, having first been considered by the costs sub-committee of the president's Ancillary Relief Advisory Group in 2003, and the recommendations of the sub-committee were endorsed by the president in Norris v Norris and Haskins v Haskins [2003] EWCA Civ 1084.


The existing FPR for costs will be abolished and the Civil Procedure Rule 44 disapplied. There will, in future, be one rule: FPR 2.71.


The revision of the rules will bring about the abolition of the use of Calderbank letters. It will still be possible to make without-prejudice offers but they can only ever be of any assistance at a financial dispute resolution appointment, as a trial judge will have no interest in them. The use of open offers will become a powerful tool in the armoury of the family practitioner.


The existing principle that costs follow the event will be displaced, and the general rule will be that the court will not make an order for costs either at a final or interlocutory hearing.


However, the court will be permitted to take into account the litigation conduct of a party to the proceedings. Costs will become a part of the substantive application and treated as a legitimate liability. This liability will form part of the overall pot and, rather than pursuing its determination out to the end of the case, will be dealt with in the award.


If costs are to be dealt with as part of the substantive application, it remains to be seen what practical effect this will have on the time it will take for cases to be heard as, axiomatically, the time estimates for trial will increase. It will also be interesting to see how practitioners will wear the glove of litigation conduct.


Perhaps earlier attempts to take the sting out of the family litigation tail and adopt a conciliatory approach will be felt, instead, in the costs argument.


By Gill Rivers, consultant, Charles Russell, London