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PART 9E+WAPPLICATIONS FOR A FINANCIAL REMEDY

CHAPTER 6E+WGENERAL PROCEDURE

Power to order delivery up of possession etc.E+W

9.24.—(1) This rule applies where the court has made an order under—

(a)section 24A of the 1973 Act M1;

(b)section 17(2) of the 1984 Act;

(c)Part 3 of Schedule 5 to the 2004 Act; or

(d)paragraph 9(4) of Schedule 7 to the 2004 Act.

(2) When the court makes an order mentioned in paragraph (1), it may order any party to deliver up to the purchaser or any other person—

(a)possession of the land, including any interest in, or right over, land;

(b)receipt of rents or profits relating to it; or

(c)both.

Marginal Citations

M1Section 24A was inserted by section 7 of the Matrimonial Homes and Property Act 1981 (c.24) and subsection 6 was inserted by section 46(1) of and Schedule 1 to that Act and the section was amended by section 66(1) and 66(3) of and paragraph 8 of Schedule 8 to and Schedule 10 to the Family Law Act 1996 and by section 261(1) of and paragraph 42 of Schedule 27 to the Civil Partnership Act 2004.

Where proceedings may be heardE+W

9.25.—(1) Paragraph (2) applies to an application—

(a)for a financial order;

(b)under Part 3 of the 1984 Act; or

(c)under Schedule 7 to the 2004 Act.

(2) An application mentioned in paragraph (1) must be heard—

(a)where the case is proceeding in the county court, at any court of trial; and

(b)where the case is proceeding in the High Court—

(i)at the Royal Courts of Justice; or

(ii)in matrimonial or civil partnership proceedings, any court at which sittings of the High Court are authorised.

(3) An application for an order under—

(a)section 27 of the 1973 Act M2; or

(b)Part 9 of Schedule 5 to the 2004 Act,

must be heard in a court of trial or in the High Court.

(4) A court may transfer a case to another court exercising the same jurisdiction, either of its own initiative or on the application of one of the parties, if—

(a)the parties consent to the transfer;

(b)the court has held a hearing to determine whether a transfer should be ordered; or

(c)paragraph (5) applies.

(5) A court may transfer a case without a hearing if—

(a)the court has notified the parties in writing that it intends to order a transfer; and

(b)neither party has, within 14 days of the notification being sent, requested a hearing to determine whether a transfer should be ordered.

Marginal Citations

M2Section 27 was amended by sections 4 and 46(1) and paragraph 13 of Schedule 1 to the Matrimonial and Family Proceedings Act 1984 and sections 63(1), (2), (3) (4) and (5) and 89(2)(b) of and Schedule 3 to the Domestic Proceedings and Magistrates' Courts Act 1978 and sections 33(1) and 66(1) and paragraph 52 of Schedule 2 and paragraphs 13(2), (3) and (4) of Schedule 8 to the Family Law Act 1996 and section 6(1) of the Domicile and Matrimonial Proceedings Act 1973.

Applications for consent orders for financial remedyE+W

9.26.—(1) Subject to paragraph (5) and to rule 35.2, in relation to an application for a consent order—

(a)the applicant must file two copies of a draft of the order in the terms sought, one of which must be endorsed with a statement signed by the respondent to the application signifying agreement; and

(b)each party must file with the court and serve on the other party, a statement of information in the form referred to in Practice Direction 5A.

(2) Where each party's statement of information is contained in one form, it must be signed by both the applicant and respondent to certify that they have read the contents of the other party's statement.

(3) Where each party's statement of information is in a separate form, the form of each party must be signed by the other party to certify that they have read the contents of the statement contained in that form.

(4) Unless the court directs otherwise, the applicant and the respondent need not attend the hearing of an application for a consent order.

(5) Where all or any of the parties attend the hearing of an application for a financial remedy the court may—

(a)dispense with the filing of a statement of information; and

(b)give directions for the information which would otherwise be required to be given in such a statement in such a manner as it thinks fit.

(6) In relation to an application for a consent order under Part 3 of the 1984 Act or Schedule 7 to the 2004 Act, the application for permission to make the application may be heard at the same time as the application for a financial remedy if evidence of the respondent's consent to the order is filed with the application. (The following rules contain provision in relation to applications for consent orders - rule 9.32 (pension sharing order), rule 9.34 (pension attachment order), rule 9.41 (pension compensation sharing orders) and rule 9.43 (pension compensation attachment orders.)

[F1Questions as to the court’s jurisdiction or whether the proceedings should be stayedE+W

9.26A.—(1) This rule applies to applications for maintenance where a question as to jurisdiction arises under—

(a)the 1968 Convention;

(b)the 1988 Convention;

(c)the Lugano Convention; F2...

(d)F3...[F4; or

(e)Article 18 of the 2007 Hague Convention.]

(2) If at any time after the issue of the application it appears to the court that it does not or may not have jurisdiction to hear an application, or that under the instruments referred to in paragraph (1) it is or may be required to stay the proceedings or to decline jurisdiction, the court must—

(a)stay the proceedings, and

(b)fix a date for a hearing to determine jurisdiction or whether there should be a stay or other order.

(3) The court officer will serve notice of the hearing referred to at paragraph (2)(b) on the parties to the proceedings.

(4) The court must, in writing—

(a)give reasons for its decision under paragraph (2), and

(b)where it makes a finding of fact, state such finding.

(5) The court may with the consent of all the parties deal with any question as to the jurisdiction of the court, or as to whether the proceedings should be stayed, without a hearing.

(6) In this rule—

(a)“the 1968 Convention” has the meaning given to it in the Civil Jurisdiction and Judgments Act 1982;

(b)“the 1988 Convention” and “the Lugano Convention” have the meanings given to them in rule 34.1(2).]

Textual Amendments

[F5International Maintenance Obligations: Communication with the Central Authority for England and WalesE+W

9.26AA.—(1) Where the Lord Chancellor requests information or a document from the court officer for the relevant court for the purposes of Article 58 of the Maintenance Regulation or Articles 12 or 25(2) of the 2007 Hague Convention, the court officer shall provide the requested information or document to the Lord Chancellor forthwith.

(2) In this rule, “relevant court” means the court at which an application under Article 56 of the Maintenance Regulation or Article 10 of the 2007 Hague Convention has been filed.

[The Lord Chancellor is the Central Authority for England and Wales in relation to the 2007 Hague Convention and the Maintenance Regulation]]

Textual Amendments

[F6Adding or removing partiesE+W

9.26B.—(1) The court may direct that a person or body be added as a party to proceedings for a financial remedy if—

(a)it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or

(b)there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.

(2) The court may direct that any person or body be removed as a party if it is not desirable for that person or body to be a party to the proceedings.

(3) If the court makes a direction for the addition or removal of a party under this rule, it may give consequential directions about—

(a)the service of a copy of the application form or other relevant documents on the new party; and

(b)the management of the proceedings.

(4) The power of the court under this rule to direct that a party be added or removed may be exercised either on the court’s own initiative or on the application of an existing party or a person or body who wishes to become a party.

(5) An application for an order under this rule must be made in accordance with the Part 18 procedure and, unless the court directs otherwise, must be supported by evidence setting out the proposed new party’s interest in or connection with the proceedings or, in the case of removal of a party, the reasons for removal.]

Textual Amendments