Giving the Court Information to Make a Consent Order: the New D81
Published: 09/03/2022 08:00
The English family court adopts a curious position when it comes to making an order agreed by the parties. Some countries will accept a written agreement as equivalent to an order and ask no more, with some countries even dispensing with independent legal advice as a prerequisite. In contrast, England won’t automatically make an order negotiated by specialist lawyers after mutual disclosure. It is English family court paternalism at its height. Lord Justice Thorpe in one famous case went so far as to say that the parties negotiating were only there to assist the court to make a final order. News to most parties! The family court emphasises it is not a rubberstamp and has to make sure the eventual order is a fair one.
Therefore many years ago, in the mists of time, everyone had to fill in a form setting out summary financial and other circumstances in order that the court could decide if the order, the outcome, was fair. I remember it started off as a short two-page document and easy to complete. It then morphed into four or five pages and again moderately easy. There were cases in which the document was filed at the court without the other party knowing what was being said. So it changed again and the documents had to be completed as one document alternatively exchanged before filing.
The constant problem was that the information on the form was hopeless to give any indication what in reality was the outcome, the net effect, and whether that outcome was fair. With a consent order of a dozen or more pages with complicated recitals and provisions about various assets, with those assets often not being individually referred to in the information document, how could a judge decide if it was a fair outcome? Often impossible. A number of sensible solicitors filed net effect schedules alongside the summary document. As did, incidentally, a few online divorce service providers. This helped the judge. Some judges refused an order until they had a net effect calculation but this was quite rare.
Moreover instances of the order being refused, apart from defects in the drafting process, were anecdotally very few.
And so the summary of financial information gradually became a pretty pointless document in deciding fairness of outcome. Reform could go only two ways. England could adopt approaches from places such as Scotland, civil law Europe and elsewhere and give weight to the autonomy of the parties. If they can decide the marriage has broken down irretrievably without any grounds, if they can enter into a persuasively binding marital agreement without taking the opportunity of legal advice, why not a final consent order? Alternatively make it a worthwhile document doing the job intended including net effect. And rather predictably this latter is what we have now got.
It is 23 pages. It will take much more time to complete although digitalisation will make it easier. Far more detailed information must be given. Fundamentally not only does it set out the present finances but the net effect of the intended final or interim court order. This is vital. It is only in this way that the judge can ascertain whether the outcome is within the broad range of what a court will find fair and acceptable. We can now expect many more queries from court offices about the outcome especially if it appears one party is receiving significantly less than the other. There will be more need for solicitors to give an explanation on the new form about the particular structure of the settlement including any significant differential in outcome between the parties.
It will also be helpful for the parties themselves. Whilst many of us would make sure our clients are fully aware of how the settlement will work out for them, it’s clear some parties are not fully aware. They will be, or should be, with this form.
It will take longer and cost more and this should be brought into account in any estimates of finalisation of a settlement.
There is another reason why this form is desperately needed. Family law finance needs assistance of artificial intelligence. In any set of circumstances, what is likely to be the outcome? Higher courts can give us some principles (and hopefully not too conflicting) but not the outcomes. Artificial intelligence can crunch through huge amounts of data and analyse. If we were able to give all of the outcomes from the family courts over the space of a couple of years and the background information leading to that outcome, artificial intelligence would be able to inform us what would happen in many particular sets of circumstances. By having big data, we would get rid of the few cases with distinctive circumstances which otherwise distort the picture. Many of us keen to digitalise family finance work have been frustrated over many years that the big data is not available. It is now. Provided resources are appropriately given, this D81 in its new incarnation can provide the data to indicate in broad terms likely outcomes on particular circumstances. This will not come to fruition quickly. But the process can now start. That is a vital element for our family law future.
I congratulate those involved in drafting this form. Of course a few tweaks here and there may be necessary as we work with it. But it is far better than its predecessor, for the parties concerned, the judge considering the draft consent order and for the future of family law analysis. Indeed, following its publication the Law Commission has welcomed the change, and thanks Mr Justice Mostyn for this significant piece of work, representing a a vital step in the data-gathering exercise.
Prof David Hodson OBE MCIArb
The International Family Law Group LLP
© February 2022
Prof David Hodson OBE MCIArb is a family law dispute resolution specialist and co-founder partner of The International Family Law Group a specialist law firm representing international families. He is an English solicitor, mediator, arbitrator, Australian (NSW) solicitor and a deputy (part time) family court judge at the Central Family Court (DDJ in the FRC at the CFC) in London. He is a member of the English Law Society Family Law Committee, a Fellow of the International Academy of Family Lawyers, a member of LawAsia, the Family Law Section of the Law Council of Australia and a similar contributor to many family law organisations around the world. He is Visiting Professor at the University of Law and Honorary Professor of Law at Leicester University. He is an Anglican lay preacher. He has written and spoken extensively throughout his career on family law, including many conferences overseas. He was awarded the OBE (June 2014) for ‘services to international family law’. He is the editor and primary author of the LexisNexis textbook The International Family Law Practice (sixth edition August 2021). He was appointed QC (Hons) in December 2021 for his significant contribution to English law and practice.
'David Hodson is an encyclopaedia when it comes to international family law. There are very few like him in family law'. 'David Hodson is a doyen in the field'. Listed in The Hall of Fame 2022. The Legal 500 2022
The International Family Law Group LLP is a specialist law firm based in Covent Garden, London. Our legal team includes specialist accredited English lawyers, mediators, collaborative lawyers, arbitrators, & Australian lawyers. We look after the interests of families & children, with a specific focus on international families. A key area of our work is recognition of foreign marriages & divorces & the financial consequences of relationship breakdown. We are committed to the use of digital innovations for the benefit of clients & resolution on international family law cases. We have outstanding links with law firms & specialist family lawyers within Europe & worldwide. Our website is full of helpful information including a 24-hour abduction & emergency line at www.iflg.uk.com.
“The clue is in the name – ‘the’ go to place for international family law”. “The lawyers are specialists in cross-border family law and have a breadth that covers both children related and financial consequences of relationship breakdown occurring in families that have an international dimension to their cases. They always impress with the dedication to detail, client service, and deep knowledge of the relevant legal framework." The Legal 500 2022