FA-FDR - I have lost everything

Sorry DIY but your post and your own personal dilemma have highlighted something which affects everyone going into a FDR and I think it helpful to add something to what Fiona says.

The decision in Rose and Rose is the Law right now and until someone invests the cash and time to take a similar issue to the House of Lords it will stand, however there are reasons for saying Rose and Rose may not apply in a case where verbal agreement was given and accepted by the FDR judge.

In para 30 of the transcript of the handed down judgement of SBR Ltd, J Buxton states that Rose and Rose was treated at a different level to the average case where a district judge in a busy hearing centre may have several FDRs in his list, the papers submitted in advance may be inadequate or incomplete, the court may not have has adequate time to pre-read and furthermore it is not easy to retain a clear separation of the relevant facts of the several cases so listed.

So the judgement in Rose and Rose was based on a 'Rolls Royce FDR hearing' (he appellant's QC's words reiterated by J Buxton).

Para 33 of J Buxton's judgement confirms that he considers the matter 'against that background', ie the 'Rolls Royce FDR hearing'.

I accept Fiona what you are saying, it's a precedent and therefore taken as being the Law, even though it goes against the provisions of the CPR which IS Law - this is something I personally find difficult to understand.

It appears very much that J Buxton arrived at his judgement first and then worked backwards. The CPR covered his concern about changing mind after a FDR, after a signed agreement.

DIY DIVORCE, Fiona gives good advice - to ring up the court and ask them what the situation is and a bit of A1 legal help. But don't forget that your xtb is probably as fed up as you are, you may have more power than you think you do.

YA - you're saying the Civil Procedure Rules don't apply to our Ancillary Relief claims?
If so - do we know if divorcers would be better protected from appeal precedents based on individual circumstances if they did?
For an appeal precedent to stick in any given subsequent case - do the circumstances have to be a close fit?
How can three beaks bickering produce "law"


CPR - www.justice.gov.uk/civil/procrules_fin/c...nts/parts/part01.htm
"The overriding objective
1.1
(1)
These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2)
Dealing with a case justly includes, so far as is practicable –
(a)
ensuring that the parties are on an equal footing;........."
Would that rule out LIPs or support them better?

Maggie,

The Family Procedure Rules may apply to any rules of court including in particular Civil Procedure Rules (Courts Act 2003,s76 (4)).

In themselves the CPR apply to 'civil litigation in the Queen's Bench Division and the Chancery Division of the High Court and to litigation in the county courts other than family proceedings. Where relevant they also apply to appeals to the Civil Division of the Court of Appeal.'

The FPR are the governing rules for Divorce and the law provides that the FPR may make reference to the CPR where it is felt necessary. Unfortunately para 2.61E of the FPR is couched in the broadest terms and isn't as well laid out as the CPR, neither does this section of the FPR refer to the CPR - although it could!

The FPR are currently being revised, but so what?

In Rose and Rose the summary is the two parties verbally agreed, went away to draft a Consent Order, drafted the consent order to which they had agreed and THEN one of them backtracked.

Understandably the courts don't like the idea of being messed about and the idea behind the ruling is not to restrict the FDR, to allow binding agreements to be made at it - but that can be done using the CPR rules with the parties' signatures.

My HUGE objection is to this extrapolation to 'verbal' agreement. In Rose and Rose the parties' verbal agreement was followed by activity all commensurate with an agreement having been made, BUT......

what about a stuttering self-repper with a nervous tic? A signature by such a one is a positive action that cannot be misconstrued. There is great scope for misunderstanding in allowing agreement of a consent order to be determined by the judge hearing a self-repper's nervous answer, or affirmation of a bored/stressed legal representative.

It's daft but as Fiona says, it is the law - I would add 'currently'.

Three beaks bickering = Law, lol! That sums it all up so well Maggie!

The Law is supposed to be for the people, the legal reps are there to help those that cannot do it themselves, but it's all gone mad and now solicitors are usually involved first before people even try to sort things out between them.

The Court individuals as a rule do not like self-reppers but it's a secret discrimination, not open.

In summary, yes Maggie, the CPR only apply to Divorce where the FPR says so and in the case of an FDR, the provisions of the CPR do not apply. I was wrong, there is a perfectly good law available in one set of rules, the other set of rules is allowed by law to refer to them, it doesn't and so instead of going to rules already drafted, Buxton J decides to make up his own - that's the law.

YA

YA, Maggie,

the debate you guys are having is totally unreal.....if it helps to create debate and change the law then i'm all for it, however at this point i must say a few things:

I have noticed a few comments regarding my need for 1st class lawyers. Hell, if i had the money, i would have taken a legal secretary to assist me.

In short, THE only way that this can go forward, is if i am able to represent myself. As i explained to a friend this morning, i am not sure how i will pay for my MOT and car tax, letalone a lawyer........and if i was forced to choose, the only thing i'll say is that for the lawyers fee, i'll not be able to get to work, so my priorities are fairly clear.

Having said that, as much as i'd love to say that i will stick to my guns and dig my heals in, the complexities you guys are currently discussing are such that unless i went to Uni for the next 8 years and learned the law itself, i am not certain of how i would even articulate myself correctly. That is from both a verbal and written point of view.

Failure for me here is simply not an option. Not bcos of pride, but becos of economics. Failure would financially cripple me for a futher 5 years on the five i already have in paying back my debts.

My decision is crystal clear to me, yet totally blurred in the eyes of the law, and it is the ambiguity and my lack of knowledge of the law which will damage me for a long time............

if they earrn that aouunt couuldnt yoou hhave gone foor spousa mmaintanannce

Hi DIY Divorce,

I understand.

You appear on the verge of personal bankruptcy and do not want to go anywhere near this route.

Ringing the court tomorrow to find out whether there is a final agreement is not a risk item.

Let's say there is no final agreement. The result? You go to Final hearing.

If there is a final agreement, your xtb's sols will be drawing it up. This may or may not reflect your impression of the shafting you think you received.

The wording of the Consent Order may be such that it prejudices your financial position even further. If you want an opinion on whether you have been earmarked for financial sodomy then by all means pm with a copy of what you think the minutes of the agreement were together with a copy of the draft consent order.

I have copies of a wide range of 'normal' undertakings and precedents, there may be scope to stop you from being totally stamped on, and if the gods favour you, ekeing a little back. If you don't try, you don't get.

Best wishes,

YA

YA, Fiona, Maggie and everyone else:

I have finally made a decision:

Firstly i will contact the court tomorrow to establish if a final agreement has been decided upon. How long would it take to get through the system. Ie would the Section C already have the agreement if it was only last thurs that all of this broke? If it has not been processed as yet, can i send in a statement voicing my dissaproval just to make the point, or will that mean nothing?

My personal opinion is that this will be driven through, and the "agreement" will be ratified by the court.

If yes, i will then wait, and quire happily send the documents to YA for a little look see.

I'll let you know..........

(Man this legal jargon is serious stuff!!!)