How much would you like to pay?
On Monday I was presenting a seminar in Leicester in the afternoon. I took the train and then a taxi to the venue.
I got in the first taxi in the queue waiting outside the station. After I told the driver the destination, he said "How much do you want to pay?"
I was a little taken aback, I could see that he had a meter and as a good (read suspicious) lawyer I was wary of him asking this question.
New FPR 2014
Family Procedure Rules 2014
The transitional arrangements
I have been busy over the last few months getting to grips with the creation of the new Single Family Court materials as I am presenting seminars for CLT until July 2014. If you would like to attend a lecture please look at the available dates here.
However, as the new Family Court comes into being today, there are a couple of things that practitioners need to know.
CPR 1998/FPR 2010 comparison table
- The Case management powers for civil Cases are in Part 3 of the CPR 1998 and for family cases in Part 4 of the FPR 2010.
Divorce Petitions - service
FPR 2010 Practical Tips series #5
How to make an application to serve the Respondent in a different way.
Part 18 application
The Petitioner should make an application under Part 18 FPR 2010 - application form D11 can be found here
The Petitioner asks the court to either allow the Petitioner to serve the Respondent at a different place or by a different method.
FPR 2010 practical tips series - Tip #1
Parts 6 and 7 FPR 2012 - No longer require the Respondent in Divorce, Civil partnership dissolution, Nullity or Judicial Separation/Separation proceedings to give his or her residential address for the purpose of serving the petition.
The old Rules specifically required that the Respondent be served either via a solicitor or at their home address. the new rules do not contain this stringent pre-condition.
If the Respondent gives an address for service which is within the Jurisdiction then that address can be used. If he does not give an address, only then must s/he be served at his last or usual address (FPR 2010 r6.13 (2))
The matter of service will only be problematic if the Petitioner has reason to believe that the Respondent doesn't live at their last known address, only then will the Petitioner need to take further/other steps to make enquiries to serve the petition.
FPR 2010 practical tips series #2
Continuing on with the theme from yesterday - serving a divorce petition.
If service isn't effective by the court sending a copy to the Respondent what are the next steps?
Personal service of the petition is a good option but only if it is the fact of service that needs to proved. Sometimes consent/admission is needed and the fact of service won't remedy those requirements.
(a) Adultery - Personal service isn't going to help to progress the petition as adultery will still need to be admitted (this may be done by a signed confession before the petition is issued) or proven by evidence.
(b) Unreasonable Behaviour - Personal service will certainly help in this case
(c) 2 years desertion - Personal service will help in this case, although very few petitions are ever issued using this fact
(d) 2 years separation with consent - Personal service will only help to a certain extent, the Respondent's consent still needs to be obtained.
(e) 5 years Separation - Personal Service will help
The only adultwho can't serve the petition on the Respondent is the Petitioner.
FPR 2010 - Practical tips series #3
Bailiff Service - A good idea or not?
The rules state that bailiff service can be used to serve a petition personally on a Respondent. See tip #2 as to whether personal service will help the petition proceed to the next stage.
A request to the court to serve the Respondent can be made but only if the Respondent lives within England or Wales. Although the Bailiffs might quite like a quick trip abroad, this isn't a viable option!
The Petitioner must first have tried to serve the petition by post and waited for the acknowledgement of service to be returned to the court. The procedural guidelines can be found at Practice Direction 6A
It is worrying that the new rules make it clear that if the Petitioner is legally represented then a request for service using the court bailiffs will rarely be granted, the general expectation is that a process server should be used instead.
The court bailiffs charges are fixed at quite a low rate, however these days private process servers are willing to charge fairly low fixed costs for the same service. Private process servers are usually quicker at obtaining a result, so if the matter is time sensitive then this might be the better option.
FPR Practical Tips Series #4
What should a Petitioner do if the Respondent can't be be served "in the usual way?"
First of all - what is the usual way? (Tips #1-3)
- The Respondent doesn't have a solicitor to serve
- The Respondent hasn't given an address to be served at
- The Respondent can't be served by personal service
- The Petitioner doesn't know a current address or believes that the Respondent isn't at the last known address that s/he had
Are there any choices left?
This week I have been in London and Norfolk delivering courses for CLT. On Monday I was running an Advocacy course which was thoroughly enjoyable, both for me and the delegates who attended. I'm keen to encourage solicitors to do their own advocacy where they feel able to. Its not that I don't instruct barristers but I do feel that having drafted all the papers in a case, actually read and written all the correspondence and spoken to the client on multiple occasions, i'm pretty well placed to present their interests in court.
Myths, Divorce myths and statistics
You've all heard the one about people getting divorced in January haven't you? You know, the couple had an horrific Christmas, the mother in law bought a terrible present someone made an awful meal, there was a drunk in the house etc? Well, for years it has bothered me. Not because I'm so busy in January but quite the opposite. It is 10th January 2012 as I write this and I haven't issued a petition all year (for shame). I'd like to know who issues the first petition this year in each court just out of curiosity if nothing else. I've never had the pleasure of being a "01"- the reference number of the first petition issued in any court.
FP (Amendment) Rules 2012
The New amendment rules cover a range of amendments to the existing FPR 2010. The rules and new forms came into force on the 6th April 2012.
As far as I can tell there are a number of new Practice Directions as follows:-
PD 2A - Functions of the court
PD 5A - Forms
PD 6A - Service withing the Jurisdiction
PD 7A - Procedure for matrimonial application
PD 7B - Medical examinations
PD 9A - Financial remedy proceedings
PD 12B - Revised Private Law Programme
PD 14B - Adoptions with a foreign element
PD 27A - Bundles
PD 33A- Undertakings
PD 34A- Maintenance Regulation
PD 36A- Transitional arrangements
The first thing we do, let's kill all the lawyers
Whether a world without lawyers is likely to be good or bad is a matter for speculation for the time being, although after April 2013 we will certainly see a different legal services landscape.
In today's legal market I have noticed that a new world is emerging in which there seem to be far too many "almost lawyers", some of whom haven't quite finished the academic stage of training, others who have completed the bar exam/LPC and in all cases none of whom are answerable to a Regulatory body as they haven't completed the final stage of qualification.
This sudden increase in unqualified people in court lead to me to undertake some research in the area. There have been two recent articles about this matter, neither of which has touched upon the field of Family Litigation but the principles seem to be broadly the same. Firstly District Judge Hill wrote an article in the Law Society Gazette, which sets out a Civil case in which he refused to hear an unqualified self employed agent. The agent had undertaken a Law degree and had passed the LPC, the Judge determined that the agent didn't have rights of audience and the claim was struck out. The second article in Legalfutures also deals with the same issue of an agency who were conducting reserved work.
SEARS TOOTH AGREEMENT
As part of a Linkedin discussion I agreed to display a Sears Tooth Agreement, it has kindly been supplied to me by Saika Alam. I have not drafted this agreement nor do I agree to be responsible for its suitability in any particular case.
THIS DEED OF ASSIGNMENT is made the ______ day of _______________ 20
B E T W E E N:
(2) THE PARTNERS at the date hereof of the firm of Solicitors practising XXXXXXXX (hereinafter called "the Partners").
W H E R E A S:-
1. In an action (hereinafter called "the action") in the County Court number in which is the Applicant (hereinafter called "the Husband") and his spouse (hereinafter called "the Wife") is the Respondent, the Wife seeks financial provision to be made to her by the Husband and further she seeks orders to be made that her legal costs be paid by the Husband.
I was in the Principal Registry the other day issuing an application first thing in the morning. I noticed that there were lots of issues arising at the counter with reference to the FPR 2010.
For example, a male solicitor was issuing a non molestation application on behalf of a male applicant and they were waiting to swear the affidavit in support of the application. I wondered whether I should point out to them all, counter staff and solicitor alike that the statement doesn't need to be sworn anymore. I decided against it as it would probably put the Applicant more on edge than he was already, so instead I'll share the information with you.
Rule 10.2 (1) requires a witness statement to be filed with any application for a non molestation or occupation order.
A witness statement must be verified by a statement of truth and not sworn in the traditional way.
Marriage and divorce statistics
It caught my eye in an article on the BBC website that there seems to be a generally accepted idea that the divorce rate is on the increase, without any in depth consideration of what factors might influence the numbers.
I think it should be noted that on the pure numbers the rates are down about 20,000 from the year 2000. The number of divorces peaked at 165,000 in 1993, standing at 120,000 in 2010. However the marriage rate is also very different. in 1993 there were 300,000 marriages whereas that number is 230,000 for 2009 (the last year that stats are available). 1993 marked a period of recovery after a recession, if this trend is followed then the divorce rate might peak after the current recession is over. In my practice I have noted over the last 2 years that I see an increased number of people who can't afford to get divorced and divide their finances. There being no equity in the couple's property, insufficient income to spend on solicitors fees and a general feeling that "its not the right time" seems to me to be more prevalent than in previous years. These couple's choose to wait and see, rather than take any action.
Christmas and families
In this period between Christmas and the New Year, I tend to go to the office to catch up on my paperwork. I consider it to be my quiet time to clear those bits of paper from my desk and tidy up a bit.
This is probably in stark contrast to what people think that a family law solicitor does at this time of year. Every year I read articles on the same subject and I sometimes even see a "celebrity" solicitor on T.V pushing the same story year after year about how busy family lawyers are after the Christmas period. Having worked for a number of firms over a number of years, I disagree. Even when I was a legal aid solicitor with a great deal more work, we had very few emergency situations arise during this period.
Family Courts without a lawyer - A handbook for litigants in person - Lucy Reed
I have to start this review by coming clean - I haven't been paid to write this review. I contacted Lucy via her linkedin page and rather cheekily asked for a copy to review. She very kindly agreed and I thank her and her publishers (Bath Publishing) for promptly supplying me with a copy.
I suddenly realised when I was lecturing one day that I was referring to this book when answering delegate questions, at that stage it had just been reviewed in the Guardian but I hadn't read it myself. What a great book - I hadn't read it and I was already recommending it to other people!
Now I have read it, from cover to cover and this is what I think (I still recommend it!)