LAWFULNESS OF ‘STANDARD’ ORDERS: long live Resolution’s precedents

Administration of family law: ‘standard form orders’

With care you can find the present batch of ‘standard’ orders for family proceedings on the website of the judiciary of England and Wales: http://www.judiciary.gov.uk/publications-and-reports/reports/family/Family+Orders+Project. If you are a Resolution member you may be able to access their version of some precedents (my access is awaiting activation). It is likely that those which Resolution have done, because edited and re-edited, over many years, are likely to be more accurate.

By direction of Sir James Munby P, Mostyn J is heading the administrative effort to prepare these ‘standard form’ judiciary orders. It is not, by any definition, a judicial task. Mostyn J operates an administrator. The legality of what he is doing is open to review like any other administrative task. At least they are no longer the ‘mandatory orders’ (a term adopted unthinkingly by Resolution’s outgoing chairman, still, in March 2014) in his fenestral musing of July 2013. The ‘standard’ drafts have not been produced by any recognised constitutional process (as explained eg by Secretary of State for Communities and Local Government v Bovale Ltd and anor [2009] EWCA Civ 171). In some respects it is clear that they are unlawful (a couple of examples of the unlawfulness is given below).

These ‘standard’ orders must be treated with extreme care. Judges are not ‘forensic’ ferrets. If they are wrong we will be blamed by our clients (the Mountney example below is ripe for a professional negligence claim: a pint of which Mostyn J need not be aware – he is but an apparatchik in this). They are a measure of the arbitrariness of the present family law administrative regime. On subjects like this the President recognises no contrary argument; a form of administration which went out – mostly – in 1688.

Unlawful orders: ‘order for sale’

Of unlawfulness two examples will suffice: the precedent for an ‘order for sale’ (Matrimonial Causes Act 1973 s 24A(1)) is as follows:

47        Order for sale

The [family home] / [property/ies] [as in definition above] shall be sold forthwith on the open market for sale 

Matrimonial Causes Act 1973 s 24A(1), under the heading, ‘Orders for sale of property’, provides as follows:

Orders for sale of property

(1) Where the court makes under section 23 or 24 of this Act a secured periodical payments order, an order for the payment of a lump sum or a property adjustment order, then, on making that order or at any time thereafter, the court may make a further order for the sale of such property as may be specified in the order, being property in which or in the proceeds of sale of which either or both of the parties to the marriage has or have a beneficial interest, either in possession or reversion.

It is not difficult to see that the sale order is contingent (eg use of the word ‘then’). It depends on the court having made an order for a lump sum (s 23(1)) or a property adjustment order (s 24). It is known that Mostyn J does not agree with this; whereas Coleridge J is quite clear on the point (as it the statute) in eg V v V (Financial Relief) [2005] 2 FLR 697 para [39].

On a practical point, best practice should ensure that transfer is achieved as soon as possible after the order; so why not an order ‘forthwith’ (as I had persuaded former colleagues on Resolution precedents to recognise); for if the transferor goes bankrupt – either on his own petition or on that of a third party – before title passes, the trustee in bankruptcy will keep his share. Title will pass immediately upon the order being made (in operative ‘forthwith’), or upon decree absolute if later (Mountney v Treharne [2002] EWCA Civ 1174); not, for example, on the signing of transfer documents etc.

There is no need to delay a moment beyond the date of the order, or decree absolute (if later). Mountney shows precisely the dangers of an order drafted in the way that this is drafted; even if the order, correctly, were drafted in accordance with the law (ie contingent on a lump sum etc order) and not in the present free-standing – and thus unlawful – way.

Legal services orders

Matrimonial Causes Act 1973 s 22ZA (the ‘standard orders’ do not descend to statutory references as do Resolution’s helpful footnotes) enables the court to make an order that one spouse should pay to the other money to fund the litigation (divorce or ‘financial relief’ proceedings) in which they are involved. This is further explained in ss 22ZA and 22ZB (and by Mostyn J in Rubin v Rubin [2014] EWHC 611 (Fam), where unaccountably he starts to call the orders legal services ‘payment’ (sic) orders; the word ‘payment’ is redundant and is not to be found in the statute which specifically defines the meaning of ‘legal services order’).

The original draft of this order is to be found at Family Law [2013], and was requested of me by Mostyn J (as yet unacknowledged); but he does not make provision for payment direct to counsel (as I did) and he adds a peremptory order for sale. Yes, this is in the statute; but it cannot apply till after decree absolute. Very few applications of this type will be made prior to decree absolute, especially where, as is the case, most parties (on advice, where they have it) do not apply for a decree absolute until conclusion of the proceedings for which the LSO is likely to be sought.

This point should surely appear in a foot-note to this order. A lay person – perhaps even a district judge in a hurry – who reads the present draft might think that a non-paying party could be more or less immediately evicted from their home. (The present draft on this point, may make the charging order provision I had included, redundant; or the charging order point needs to be explained alongside the sale provisions.)

Resolution precedents

Drafting of court order precedents is a job requiring the sort of cumulative experience and attention to detail which a group of Resolution members – practising solicitors all – can offer, and have offered, over 20 years and more of drafting and refining, and drafting again. It is not for a judge with a busy judicial schedule, to do this job. It is an administrative task which should be performed by administrators (insofar as it is not already done by private publishers, and groups like Resolution. Resolution has the ability and respect f the judiciary to stop this sometimes unlawful project. In the meantime trust their precedents before those of Mostyn J.

In the meantime the ‘judiciary of England and Wales’ are but another publisher of precedents; but there are likely to be less accurate – and sometimes unlawful; and they do not have the advantage to the reader of Resolution’s carefully crafted notes on each order.

5 April 2014

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