Family Law

In CS v ACS (Consent Order: Non-Disclosure: Correct Procedure) [2015] EWHC 1005 (Fam), [2016] 1 FLR 131 the President, Sir James Munby, ruled that paragraph 14.1 of Practice Direction 30A of the Family Procedure Rules 2010 was ultra vires or made without the power to make it.  The material part of para 14.1 of PD30A read as follows:

'An appeal is the only way in which a consent order can be challenged'

This statement conflicted with long-standing common law practice in the courts and with the specific statutory powers of the Family Court conferred by s 31F(6) of the Matrimonial and Family Proceedings Act 1984. The President ruled that the procedural rules could not fetter the long-standing right of a party to proceedings to seek a set-aside of that order where that right was enshrined in statute.  The words set out above were struck down as being a nullity.

It seems to me that paragraph 14.1 may not be the only part of PD30A which is ultra vires.  Although I spotted this a while ago I have been too diffident to mention it publically until the revelation in CS v ACS that the authors of the FPR and its Practice Directions may have feet of clay gave me confidence to do so.  Its rather technical, but bear with me.

Let me invite you to consider the terms of paragraphs 11.1 to 11.3 of PD30A. They read as follows:

Appeals against pension orders and pension compensation sharing orders

11.1  Paragraph 11.2 below applies to appeals against –

(a) a pension sharing order under section 24B of the Matrimonial Causes Act 1973 or the variation of such an order under section 31 of that Act;

(b) a pension sharing order under Part 4 of Schedule 5 to the Civil Partnership Act 2004 or the variation of such an order under Part 11 of Schedule 5 to that Act;

(c) a pension compensation sharing order under section 24E of the Matrimonial Causes Act 1973 or a variation of such an order under section 31 of that Act; and

(d) a pension compensation sharing order under Part 4 of Schedule 5 to the Civil Partnership Act 2004or a variation of such an order under Part 11 of Schedule 5 to that Act.

11.2  Rule 4.1(3)(a) (court’s power to extend or shorten the time for compliance with a rule, practice direction or court order) does not apply to an appeal against the making of the orders referred to in paragraph 11.1 above in so far as that rule gives the court power to extend the time set out in rule 30.4 for filing and serving an appellant’s notice after the time for filing and serving that notice has expired.

11.3  In so far as rule 30.7 (Variation of time) may permit any application for variation of the time limit for filing an appellant’s notice after the time for filing the appellant’s notice has expired, that rule shall not apply to an appeal made against the orders referred to in paragraph 11.1 above.

The terms of paragraphs 11.2 and 11.3 make it very clear that the authors of PD30A intended that there should be no scope for an appeal against a pension sharing order or pension compensation sharing order outside the standard 21 days from the decision or order.  This indicates that although there can be an appeal against a pension sharing order or a pension sharing compensation order the appeal may only be brought within the standard 21-day period.  According to those paragraphs of PD30A there can be no extension of the 21 days, prospectively or retrospectively, even if the pension sharing order has not been implemented.

Consider next, if you will, s 40A of the Matrimonial Causes Act 1973.  Section 40A sets out limitations on when a court may allow an appeal and set aside or vary a pension sharing order.  According to its heading and s 40A(1), this section applies where ‘an appeal is begun on or after the day on which the order takes effect’ (s 40A(1)).  In such a case ‘the appeal court may not set aside or vary the order if the person for the pension arrangement has acted to his detriment in reliance on the taking effect of the order’ but ‘the appeal court may disregard any detriment which in its opinion is insignificant’.  Section 40B makes similar provision with regard to pension compensation sharing orders.

Immediately something appears to be odd here.  Here is a statutory provision which envisages that there will be appeals against pension sharing orders after they have taken effect. Although it sets some restrictions on how the court may deal with pension sharing orders after they have taken effect it does not place any limitation upon when such an order setting aside or varying the order may be made.  Why then do paragraphs 11.1 – 11.3 of FPR PD30A set a very clear and absolute 21-day limit for any appeal against a pension sharing order?

It is odder still when we look at the meaning of ‘the day on which the order takes effect’. Section 24C of the Matrimonial Causes Act 1973 specifies that ‘no pension sharing order may be made to take effect before the end of such period after the making of the order as may be prescribed by regulations made by the Lord Chancellor’.  Those regulations are the Divorce etc (Pensions) Regulations 2000 which specify at reg 9 that the pension sharing order cannot take effect until 7 days have elapsed after expiry of the time for filing a notice of appeal.  In other words, the pensions sharing order takes effect 28 days after the date the order was made.  That provision is boldly stated on every pension sharing annex in Form P1.

From the statutory provision at s 40A we know that the court hearing any appeal brought after the 28 days have elapsed and the order has taken effect may set aside or vary the order only in accordance with s 40A.  But hang on a minute! According to paragraphs 11.1 to 11.3 of FPR PD30A it is impossible to bring an appeal more than 21 days after the date the pension sharing order was made. If the Practice Direction is correct s 40A is never going to come into play because there cannot be any appeal after the pension sharing order has taken effect.  So is s 40A a dead letter?  More likely is the same conclusion as in CS v ACS: those three paragraphs in PD30A conflict with the express terms of the statute and the former must yield to the latter.  

Will the Rules committee rectify the error before a declaration of ultra vires is required?

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This article was originally published 5 May 2015 on the author's website and has been reproduced here with kind permission.