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MFPA 1984 section 13 applications should be heard at local family courts

Holman J questions why applications cannot be heard by district judges

In Barnett v Barnett [2014] EWHC 2678 (Fam) Mr Justice Holman has commented that a significant number of applications for leave under section 13 of the Matrimonial and Family Proceedings Act 1984 were being heard by High Court judges sitting at the Royal Courts of Justice when the parties and the case have no connection at all with London and the assets and the issues are objectively small and uncomplicated. The judge further commented that this was often a waste of private or legally aided costs and causes great inconvenience to parties who have to travel to London unnecessarily as these types of applications were often a formality.  

In this case the parties had been married for 40 years and for the bulk of their married life they had lived in England. However, they had lived in Bulgaria since 2009 and following separation in 2012 had divorced in Bulgaria in 2013.
The wife sought leave pursuant to section 13 of the MFPA 1984. Holman J held, pursuant to section 15 (1) of the 1984 Act, that the English court had jurisdiction to deal with the matter as he determined that the wife had retained her English domicile of origin. 

Holman J noted that Part III of the 1984 Act makes references to "the court".   The interpretation section of that Part, namely section 27, as amended, defines that in that Part of that Act '"the court' means the High Court or the family court".  Thus, as far as the statute is concerned jurisdiction under Part III is conferred on both the High Court specifically and the family court generally.

The question then arose as to where the substantive application should be issued if leave was granted?

The judge, pursuant to rules 14 and 15(2) of the Family Court (Composition and Distribution of Business) Rules 2014, SI 2014/840, and taking into account the need to make the most effective and efficient use of local judicial resource and the resource of the High Court Bench, given the nature and type of the proposed substantive application, ordered that the substantive application be issued in the family court at Stoke-on-Trent and allocated to a district judge for all further hearings.

Holman J questioned why such applications cannot first be made to the family court sitting at some convenient and appropriate local venue so that a district judge of the family court at that venue can make a decision as to whether or not the requirement to make the application for leave to a High Court judge (generally in London) is displaced by application of rule 15(2). The judge concluded that these types of cases for leave to apply for financial remedy following  a foreign  divorce could easily be decided by a district judge but that it would be necessary for FPR 2010, rule 8.26(a) (which refers to "… the hearing of the application by a judge, but not a district judge …") and which establishes that even in a local venue of the family court a non-consent application for leave must be heard by a circuit judge or a recorder, but not by a district judge would first have to be reconsidered.  

Charlotte Hartley of 1 King's Bench Walk (instructed by Brown Turner Ross) represented the applicant. The respondent did not appear and was not represented.

The judgment and summary by Joseph Moore of 1 Garden Court, from which this item is derived, are here.