PART 9APPLICATIONS FOR A FINANCIAL REMEDY
CHAPTER 5PROCEDURE IN THE MAGISTRATES’ COURT AFTER FILING AN APPLICATION
Duties of the court and the applicant upon filing an application9.18
1
When an application for an order under this Part is issued in a magistrates’ court—
a
the court will fix a first hearing date not less than 4 weeks and not more than 8 weeks after the date of the filing of the application; and
b
subject to paragraph (2), within 4 days beginning with the date on which the application was filed, a court officer will—
i
serve a copy of the application on the respondent;
ii
give notice of the date of the first hearing to the applicant and the respondent; and
iii
send a blank financial statement to both the applicant and the respondent.
2
Where the applicant wishes to serve a copy of the application on the respondent and, on filing the application, so notifies the court—
a
paragraph (1)(b) does not apply;
b
a court officer will return to the applicant the copy of the application and the notice of the date of the first hearing; and
c
the applicant must—
i
within 4 days beginning with the date on which the copy of the application is received from the court, serve the copy of the application and notice of the date of the first hearing on the respondent;
ii
send a blank financial statement to the respondent; and
iii
file a certificate of service at or before the first hearing.
3
The date fixed under paragraph (1), or for any other subsequent hearing or appointment must not be cancelled except with the court’s permission and, if cancelled, the court must immediately fix a new date.
Procedure before the first hearing9.19
1
Not more than 14 days after the date of the issue of the application both parties must simultaneously exchange with each other and file with the court a financial statement referred to in Practice Direction 5A.
2
The financial statement must—
a
be verified by an affidavit; and
b
contain the following documents only—
i
any documents required by the financial statement; and
ii
any other documents necessary to explain or clarify any of the information contained in the financial statement.
3
Where a party was unavoidably prevented from sending any document required by the financial statement, that party must at the earliest opportunity—
a
serve a copy of that document on the other party; and
b
file a copy of that document with the court, together with a statement explaining the failure to send it with the financial statement.
4
No disclosure or inspection of documents may be requested or given between the filing of the application for a financial remedy and the first hearing except copies sent with the financial statement or in accordance with paragraph (3).
(Rule 21.1 explains what is meant by disclosure and inspection.)
Power of the court to direct filing of evidence and set dates for further hearings9.20
Unless the court is able to determine the application at the first hearing the court may direct that further evidence be filed and set a date for a directions hearing or appointment or final hearing.
Who the respondent is on an application under section 20 or section 20A of the 1978 Act80 or Part 6 of Schedule 6 to the 2004 Act9.21
In relation to proceedings set out in column 1 of the following table, column 2 sets out who the respondents to those proceedings will be.
Proceedings | Respondent |
|---|---|
Application under section 20 of the 1978 Act, except an application for variation of an order. | The other party to the marriage; and where the order to which the application relates requires periodical payments to be made to, or in respect of, a child who is 16 years of age or over, that child. |
Application under paragraphs 30 to 34 of Schedule 6 to the 2004 Act, except an application for variation of an order. | The other party to the civil partnership; and where the order to which the application relates requires periodical payments to be made to, or in respect of, a child who is 16 years of age or over, that child. |
Application for the revival of an order under section 20A of the 1978 Act or paragraph 40 of Schedule 6 to the 2004 Act. | The parties to the proceedings leading to the order which it is sought to have revived. |
Proceedings by or against a person outside England and Wales for orders under section 20 of the 1978 Act or paragraphs 30 to 34 of Schedule 6 to the 2004 Act other than proceedings for variation of orders9.22
1
Subject to the provisions of this rule, the jurisdiction conferred on a court by virtue of section 20 of the 1978 Act or paragraphs 30 to 34 of Schedule 6 to the 2004 Act is exercisable when proceedings are brought by or against a person residing outside England and Wales.
2
Subject to paragraph (3), where the court is satisfied that the respondent has been outside England and Wales for the whole of the period beginning one month before the making of the application and ending with the date of the hearing, it may proceed with the application provided that—
a
the applicant provided the court with an address for service of the application and written notice of the hearing on the respondent; or
b
the court is satisfied that the respondent has been made aware of the application and of the time and place appointed for the hearing otherwise than by service of the application upon the respondent by the court; and
c
it is reasonable in all the circumstances to proceed in the absence of the respondent.
3
The court must not make the order for which the application is made unless it is satisfied that—
a
during the period of 6 months immediately preceding the making of the application the respondent was continuously outside England and Wales, or was not in England and Wales on more than 30 days; and
b
having regard to any communication to the court in writing purporting to be from the respondent, it is reasonable in all the circumstances to do so.
4
This rule does not apply in relation to proceedings to vary an order for periodical payments.
(Rules made under section 144 of the Magistrates’ Courts Act 1980 make provision in respect of proceedings by or against a person outside England and Wales for variation of orders under section 20 of the 1978 Act or paragraphs 30 to 34 of Schedule 6 to the 2004 Act.)
Duty to make entries in the court’s register9.23
1
Where the designated officer for the court receives notice of any direction made in the High Court or a county court under section 28 of the 1978 Act81 by virtue of which an order made by the court under that Act or the 2004 Act ceases to have effect, particulars of the direction must be entered in the court’s register.
2
Where—
a
b
in proceedings under the 2004 Act, the hearing of an application under Part 1 of Schedule 6 to that Act is adjourned after the court has decided that it is satisfied of any ground mentioned in paragraph 1,
and the parties to the proceedings agree to the resumption of the hearing in accordance with section 31 of the 1978 Act by a court which includes justices who were not sitting when the hearing began, particulars of the agreement must be entered into the court’s register.