LegalizeThe Family Proceedings Rules 1991
- (iii) the names of the parties,
- (iv) the date or expected date of any trial in the proceedings, and
- (v) such other facts as may be relevant to the question whether the proceedings on the petition should be stayed under Schedule 1 to the Domicile and Matrimonial Proceedings Act 197387;
and such proceedings shall include any which are not instituted in a court of law in that country, if they are instituted before a tribunal or other authority having power under the law having effect there to determine questions of status, and shall be treated as continuing if they have been begun and have not been finally disposed of,
- (k) where the fact on which the petition is based is five years' separation, whether any, and if so what, agreement or arrangement has been made or is proposed to be made between the parties for the support of the respondent or, as the case may be, the petitioner or any child of the family;
- (l) in the case of a petition for divorce, that the marriage has broken down irretrievably;
- (m) the fact alleged by the petitioner for the purposes of section 1(2) of the Act of 197388 or, where the petition is not for divorce or judicial separation, the ground on which relief is sought, together in any case with brief particulars of the individual facts relied on but not the evidence by which they are to be proved;
- (n) any further or other information required by such of the following paragraphs and by rule 3.11 as may be applicable.
2
A petition for a decree of nullity under section 12(e) or (f) of the Act of 1973 shall state whether the petitioner was at the time of the marriage ignorant of the facts alleged.
3
A petition for a decree of presumption of death and dissolution of marriage shall state:—
- (a) the last place at which the parties to the marriage cohabited;
- (b) the circumstances in which the parties ceased to cohabit;
- (c) the date when and the place where the respondent was last seen or heard of; and
- (d) the steps which have been taken to trace the respondent.
4
Every petition shall conclude with:
- (a) a prayer setting out particulars of the relief claimed, including any application for an order under any provision of Part I or Part II of the Children Act 198989 with respect to a child of the family, any claim for costs and any application for ancillary relief which it is intended to claim;
- (b) the names and addresses of the persons who are to be served with the petition, indicating if any of them is a person under disability;
- (c) the petitioner’s address for service, which, where the petitioner sues by a solicitor, shall be the solicitor’s name or firm and address. Where the petitioner, although suing in person, is receiving legal advice from a solicitor, the solicitor’s name or firm and address may be given as the address for service if he agrees. In any other case, the petitioner’s address for service shall be the address of any place in England or Wales to which documents for the petitioner may be delivered or sent.
APPENDIX 3 — NOTICES AND RESPONDENTS
| (i) | (ii) | (iii) | (iv) |
|---|---|---|---|
| Provision under which proceedings brought | Minimum number of days prior to hearing or directions appointment for service under rule 4.4(1)(b) | Persons to whom notice is to be given | Respondents |
| All applications | See separate entries below. | Subject to separate entries below— local authority providing accomodation for the child; in the case of proceedings brought in respect of a child who is alleged to be staying in a refuge which is certificated under section 51(1) or (2), the person who is providing the refuge. | Subject to separate entries below— persons who are caring for the child at the time when the proceedings are commenced; every person whom the applicant believes to have parental responsibility responsibility for the child; where the child is the subject of a care order, every person whom the applicant believes to have had parental responsibility immediately prior to the making of the care order; in the case of an application to extend, vary or discharge an order, the parties to the proceedings leading to the order which it is sought to have extended, varied or discharged; in the case of specified proceedings, the child. |
| Section 8. | 21 days. | As for “all applications” above, and: in the case of an application for a section 8 order, every person whom the applicant believes— to be named in a court order with respect to the same child, which has not ceased to have effect. to be a party to pending proceedings in respect of the same child, or to be a person with whom the child has lived for at least 3 years prior to the application, unless, in a case to which (i) or (ii) applies, the applicant believes that the court order or pending proceedings are not relevant to the application. | As for “all applications” above. |
| Section 4(1)(a), 4(3), 5(1), 6(7), 13(1), 16(6), 33(7), Schedule 1, paragraph 19(1) of Schedule 2, or paragraph 11(3) or 16(5) of Schedule 14. | 14 days. | As for “all applications” above, and: in the case of an application under paragraph 19(1) of Schedule 2, the parties to the proceedings leading to the care order; in the case of an application under section 5(1), the father of the child if he does not have parental responsibility. | As for all applications above, and: in the case of proceedings under Schedule 1, those persons whom the applicant believes to be interested in or affected by the proceedings; in the case of an application under paragraph 11(3)(b) or 16(5) of Schedule 14, any person, other than the child, named in the order or directions which it is sought to discharge or vary. |
| Section 36(1), 39(1), 39(2), 39(3), 39(4), 43(1), or paragraph 6(3), 15(2) or 17(1) of Schedule 3. | 7 days. | As for “all applications” above, and: in the case of an application for an order under section 43(1)— every person whom the applicant believes to be a parent of the child. every person whom the applicant believes to be caring for the child, every person in whose favour a contact order is in force with respect to the child, and every person who is allowed to have contact with the child by virtue of an order under section 34. | As for “all applications” above, and: in the case of an application under section 39(2) or (3), the supervisor; in the case of proceedings under paragraph 17(1) of Schedule 3, the local education authority concerned; in the case of proceedings under section 36 or paragraph 15(2) or 17(1) of Schedule 3, the child. |
| Section 31, 34(2), 34(3), 34(4), 34(9) or 38(8)(b). | 3 days. | As for “all applications” above, and: in the case of an application under section 31— every person whom the applicant believes to be a party to pending relevant proceedings in respect of the same child, and every person whom the applicant believes to be a parent without parental responsibility for the child. | As for “all applications” above, and: in the case of an application under section 34, the person whose contact with the child is the subject of the application. |
| Section 43(12). | 2 days. | Those of the persons referred to in section 43(11)(a) to (e) who were not party to the application for the order which it is sought to have varied or discharged. | As for “all applications” above. |
| Section 25, 44(1), 44(9)(b), 45(4), 45(8), 46(7), 48(9) or 50(1). | 1 day. | As for “all applications” above, and: in the case of an application under section 44(1), every person whom the applicant believes to be a child; in the case of an application under section 44(9)(b)— the local authority in whose area the child is living, and any person whom the applicant believes to be affected by the direction which it is sought to have varied. | As for “all applications” above, and: in the case of an application under section 44(9)(b) the parties to the application for the order in respect of which it is sought to vary the directions; any person who was caring for the child prior to the making of the order; and any person whose contact with the child is affected by the direction which it is sought to have varied; in the case of an application under section 50, the person whom the applicant alleges to have effected or to have been or to be responsible for the taking or keeping of the child. |
Signed
Mackay of Clashfern C — Stephen Brown P — Thorpe J — Roy Ward — Marian F. Norrie — Gerald Angel — W. K. Wills — James Holman — Hugh Morgan — Michael Churchouse — John Appleby — Dated 1st May 1991
Explanatory note
(This Note is not part of the rules)
These rules are the first Family Proceedings Rules, made under section 40 of the Matrimonial and Family Proceedings Act 1984. They regulate family proceedings in the High Court and the county courts.
These rules replace the Matrimonial Causes Rules 1977 and certain of the Rules of the Supreme Court 1965 (notably Orders 90 and 105) and of the County Court Rules 1981 (notably Order 47). They also contain a section (Part IV) regulating new business which will arise under the Children Act 1989.
Parts I to 111 and V to X and Appendix 2 largely reproduce existing provisions, with amendments consequential upon the Children Act 1989, in particular a new procedure is established regulating compliance with section 41 of the Matrimonial Causes Act 1973 following the revision of that section by the 1989 Act (rules 2.2(2) and 2.39). Certain other changes have been made:
- (a) it is no longer necessary, in a case where a divorce or judicial separation petition alleges that the respondent has committed adultery, for the co-respondent to be named in the petition even if his identity is known to the petitioner (rule 2.7(1));
- (b) rule 2.64(3) allows courts to order possession of a property which they have ordered to be sold;
- (c) rule 8.1(2), governing appeals from a district judge in ancillary relief applications, provides for the appeal to be on stated grounds.
Part IV (Proceedings under the Children Act 1989) provides generally for those proceedings and, in particular:
- (a) requires notice of the proceedings to be given to persons who have an interest but may not wish or need to be joined-such as persons caring for the child or fathers of children who do not have parental responsibility for them. They can then apply to be joined (Rule 4.7 and Appendix 3);
- (b) enables the court to control the timetable of the proceedings. A date for the next hearing is set at any adjournment or postponement and at the conclusion of interlocutory stages. In addition, when a case is transferred to a county court, that court must fix the date for a hearing or directions appointment forthwith (Rule 4.15);
- (c) requires the parties to exchange in advance written statements of the substance of the oral evidence which they propose to adduce, and copies of documents upon which they propose to rely (Rule 4.17);
- (d) by a requirement for leave enables the court to control medical and psychiatric examinations of the child for the purpose of obtaining expert evidence for the proceedings (Rule 4.18);
- (e) sets out the details of the role to be played by guardians ad litem appointed under section 41 of the Children Act 1989 (Rule 4.11).
Appendix I prescribes the forms to be used in family proceedings. These are taken from the forms prescribed by the Matrimonial Causes Rules 1977, revised and updated and prefixed “M”, with the addition of new forms to deal with business arising under the Children Act 1989, prefixed “CHA”.
Footnotes
Section 19 was repealed in part by the Domicile and Matrimonial Proceedings Act 1973 (c. 45), section 17(2) and Schedule 6.
Section 52(1) was applied by section 27 of the Matrimonial and Family Proceedings Act 1984 (c. 42). No other applications, or any other repeals or amendments are relevant to these rules.
Section 33A was inserted by section 7 of the Matrimonial and Family Proceedings Act 1984 (c. 42).
The only relevant amendment is made by section 63(3) of the Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22).
Section 31 was amended by section 8(2) of the Matrimonial Homes and Property Act 1981 (c. 24), section 51 of the Administration of Justice Act 1982 (c. 53) and section 6 of the Matrimonial and Family Proceedings Act 1984 (c. 42).
S.I. 1981/1687.
S.I. 1965/1776.
Section 41 was substituted by the Children Act 1989 (c. 41), Schedule 12, paragraph 31.
1968 c. 64. Section 11 was amended by the Powers of Criminal Courts Act 1973 (c. 62), Schedule 5, paragraph 31 and section 12 was amended by the Family Law Reform Act 1987 (c. 42), section 29.
Section 12(d) was amended by the Mental Health Act 1983 (c. 20), Schedule 4, paragraph 34.
Section 41 was substituted by the Children Act 1989 (c. 41), Schedule 12, paragraph 31.
Section 41 was substituted by the Children Act 1989 (c. 41), Schedule 12, paragraph 31.
1969 c. 58, section 12(2)(b) and 8 were repealed in part by the Courts Act 1971 (c. 23), Schedule 11, Part IV. Section 12(2)(a) was repealed in part by the Supreme Court Act 1981 (c. 54), Schedule 7.
Section 23 was amended by section 16 of the Administration of Justice Act 1982 (c. 53) and extended by section 21(a) of the Matrimonial and Family Proceedings Act 1984 (c. 42). Section 24 was amended by section 46(1) and Schedule 1, paragraph 11, and extended by section 21(b) of the Matrimonial and Family Proceedings Act 1984. Section 24A was added by section 7 of the Matrimonial Homes and Property Act 1981 (c. 24).
Section 27 was amended by the Domicile and Matrimonial Proceedings Act 1973 (c. 45), sections 6(1), the Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22), section 89 and Schedule 3, the Matrimonial and Family Proceedings Act 1984 (c. 42), sections 4 and 46(1) and Schedule 1, paragraph 12 and the Family Law Reform Act 1987 (c. 42), Schedule 2, paragraph 52.
Section 35 was amended by the Matrimonial and Family Proceedings Act 1984 (c. 42), Schedule 1, paragraph 13.
Section 36 was amended by section 26(1) of the Inheritance (Provision for Family and Dependants) Act 1975 (c. 63) and S.I. 1981/1636.
1882 c. 75; section 17 was amended by section 43 of the Matrimonial and Family Proceedings Act 1984 (c. 42) and repealed in part by the Statute Law (Repeals) Act 1969 (c. 52).
Section 38 was amended by the Matrimonial Proceedings (Transfers) Act 1988 (c. 18), section 1(1) and the Children Act 1989 (c. 41), Schedule 13, paragraph 51.
1983 c. 19. Section 1 was amended by the Housing (Consequential Provisions) Act 1985 (c. 71), Schedule 2, paragraph 56 and the Housing Act 1988 (c. 50).
1967 (c. 75), Schedule 17, paragraph 33.
S.I. 1965/1776.
Section 28 was amended by the Matrimonial Homes Act 1983 (c. 19), section 12 and Schedule 2.
1973 c. 18 section 47(2) was amended by the Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22), Schedule 2, paragraph 39 and the Family Law Act 1986 (c. 55), Schedule 1, paragraph 14.
1973 c. 45, Schedule 1, paragraph 11 was amended by section 8(3) of the Matrimonial Homes and Property Act 1981 (c. 24).
Section 56(1)(a) was substituted by section 22 of the Family Law Reform Act 1987 (c. 42).
Section 22 was amended by the Housing Act 1988 (c. 50), Schedule 17, paragraph 36.
1949 c. 76; section 3 was amended by sections 2(2) and 2(3) of the Family Law Reform Act 1969 (c. 46), the Children Act 1975 (c. 72), Schedule 3, paragraph 7, the Family Law Reform Act 1987 (c. 42), Schedule 2, paragraph 9, and the Children Act 1989 (c. 41), Schedule 12, paragraph 5.
1944 c. 31 (7 & 8 Geo. 6); relevant amendments are made by paragraphs 8 to 10 of Schedule 13 to the Children Act 1989.
S.I. 1965/1776.
Section 20(2) was amended by paragraph 21 of Schedule 1 to the Family Law Act 1986 (c. 55).
Section 27 was amended by the Domicile and Matrimonial Proceedings Act 1973 (c. 45), section 6(1), the Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22), sections 63 and 89(2) and Schedule 3, the Matrimonial and Family Proceedings Act 1984 (c. 42), sections 41 and 46(1) and Schedule 1, paragraph 12 and the Family Law Reform Act 1987 (c. 42), Schedule 2, paragraph 52.
Section 118(1)(i) was repealed in part by the Statute Law (Repeals) Act 1986 (c. 12), Schedule 1, Part I.
1869 c. 62. Section 5(b) was repealed by the Bankruptcy Act 1883 (c. 52), Schedule 5. Section 5 was extended by section 40 of the Administration of Justice Act 1956 (c. 46) bul restricted by section 11 of the Administration of Justice Act 1970 (c. 31).
Section 16 was amended by the Matrimonial Causes Act 1973 (c. 18), Schedule 2, paragraph 3(1)(a), the Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22), Schedule 13, paragraph 13, the Child Care Act 1980 (c. 5), Schedule 5, paragraph 3, the Matrimonial and Family Proceedings Act 1984 (c. 42), Schedule 1, paragraph 1(a) and the Family Law Reform Act 1987 (c. 42), Schedule 2, paragraph 12(b), Schedule 3, paragraph 1 and Schedule 4. Subsection 2(a)(iii) and (v) have been prospectively amended by paragraph 35 of Schedule 16 to the Courts and Legal Services Act 1990 (c. 41), Schedule 16, paragraph 35.
Section 24(1) was amended by the Administration of Justice Act 1977 (c. 38), Schedule 3, paragraph 9 and the Civil Jurisdiction and Judgments Act 1982 (c. 27), Schedule 12, Part III, paragraph 1(1)(4).
Section 23(1)(a) was substituted by the Administration of Justice Act 1977 (c. 38), Schedule 3, paragraph 8.
Section 2(5) was amended by the Administration of Justice Act 1970 (c. 31), section 54(3) and Schedule 11, the Guardianship of Minors Act 1971 (c. 3), section 18(1) and Schedule 1, the Magistrates' Courts Act 1980 (c. 43), Schedule 7, paragraph 24 and the Family Law Reform Act 1987 (c. 42), section 33(4) and Schedule 4.
S.I. 1965/1776.
Section 4(7) was amended by the Administration of Justice Act 1970 (c. 31), section 32 and Schedule 5, Part IV.
Section 5 was amended by the Administration of Justice Act 1977 (c. 38), Schedule 3, paragraph 4.
Section 2 was amended by the Civil Jurisdiction and Judgments Act 1982 (c. 27), Schedule 11, paragraphs 8 and 9.
Section 5 was amended by section 54 of the Domestic Proceedings and Magistrates' Courts Act 1978 (c. 22).
Section 14 was amended by the Magistrates' Courts Act 1980 (c. 43), Schedule 7, paragraph 105.
Rule 5(2B) was inserted by S.I. 1990/2599.
Section 38 was amended by section 1(1) of the Matrimonial Proceedings (Transfers) Act 1988 (c. 18).
1984 c. 28 section 58(1) was amended by the Administration of Justice Act 1985 (c. 61), Schedule 7, paragraph 8 and Schedule 8.
Section 56(1)(a) was substituted by section 22 of the Family Law Reform Act 1987 (c. 42).
1973 c. 45, as amended by 1981 c. 24.
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