The Family Proceedings Rules 1991

• Citation: S.I. 1991/1247
• Sections: 213

Section 1.1 Citation and commencement

These rules may be cited as the Family Proceedings Rules 1991 and shall come into force on 14th October 1991.

Section 1.2 Interpretation

(1) In these rules, unless the context otherwise requires—

“the Act of 1973 ” means the Matrimonial Causes Act 1973 ;

“the Act of 1984 ” means the Matrimonial and Family Proceedings Act 1984 ;

“the Act of 1986 ” means the Family Law Act 1986 ;

“the Act of 1989 ” means the Children Act 1989 ;

“ancillary relief” means—

an avoidance of disposition order,

a financial provision order,

an order for maintenance pending suit,

a property adjustment order, or

a variation order;

“avoidance of disposition order” means an order under section 37(2)(b) or (c) of the Act of 1973;

“business day” has the meaning assigned to it by rule 1.5(6);

“cause” means a matrimonial cause as defined by section 32 of the Act of 1984 or proceedings under section 19 of the Act of 1973 (presumption of death and dissolution of marriage);

“child” and “child of the family” have, except in Part IV, the meanings respectively assigned to them by section 52(1) of the Act of 1973 ;

“consent order” means an order under section 33A of the Act of 1973 ;

“court” means a judge or the district judge;

“court of trial” means a divorce county court designated by the Lord Chancellor as a court of trial pursuant to section 33(1) of the Act of 1984 and, in relation to matrimonial proceedings pending in a divorce county court, the principal registry shall be treated as a court of trial having its place of sitting at the Royal Courts of Justice;

“defended cause” means a cause not being an undefended cause;

“district judge”, in relation to proceedings in the principal registry, a district registry or a county court, means the district judge or one of the district judges of that registry or county court, as the case may be;

“district registry” means any district registry having a divorce county court within its district;

“divorce county court” means a county court so designated by the Lord Chancellor pursuant to section 33(1) of the Act of 1984;

“divorce town”, in relation to any matrimonial proceedings, means a place at which sittings of the High Court are authorised to be held outside the Royal Courts of Justice for the hearing of such proceedings or proceedings of the class to which they belong;

“document exchange” means any document exchange for the time being approved by the Lord Chancellor;

“family proceedings” has the meaning assigned to it by section 32 of the Act of 1984;

“financial provision order” means any of the orders mentioned in section 21(1) of the Act of 1973 except an order under section 27(6) of that Act ;

“financial relief” has the same meaning as in section 37 of the Act of 1973;

“judge” does not include a district judge;

“notice of intention to defend” has the meaning assigned to it by rule 10.8;

“order for maintenance pending suit” means an order under section 22 of the Act of 1973;

“person named” includes a person described as “passing under the name of A.B.”;

“ the President ” means the President of the Family Division or, in the case of his absence or incapacity through illness or otherwise or of a vacancy in the office of President, the senior puisne judge of that Division;

“principal registry” means the Principal Registry of the Family Division;

“proper officer” means—

in relation to the principal registry, the chief clerk of the family proceedings department, and

in relation to any other court or registry, the chief clerk,

or other officer of the court or registry acting on his behalf in accordance with directions given by the Lord Chancellor;

“property adjustment order” means any of the orders mentioned in section 21(2) of the Act of 1973;

“registry for the divorce town” shall be construed in accordance with rule 2.32(6);

“Royal Courts of Justice”, in relation to matrimonial proceedings pending in a divorce county court, means such place, being the Royal Courts of Justice or elsewhere, as may be specified in directions given by the Lord Chancellor pursuant to section 42(2)(a) of the Act of 1984;

“senior district judge” means the senior district judge of the Family Division or, in his absence from the principal registry, the senior of the district judges in attendance at the registry;

“special procedure list” has the meaning assigned to it by rule 2.24(3);

“undefended cause” means—

a cause in which no answer has been filed or any answer filed has been struck out, or

a cause which is proceeding only on the respondent’s answer and in which no reply or answer to the respondent’s answer has been filed or any such reply or answer has been struck out, or

a cause to which rule 2.12(4) applies and in which no notice has been given under that rule or any notice so given has been withdrawn, or

a cause in which an answer has been filed claiming relief but in which no pleading has been filed opposing the grant of a decree on the petition or answer or any pleading or part of a pleading opposing the grant of such relief has been struck out, or

any cause not within (i) to (iv) above in which a decree has been pronounced;

“variation order” means an order under section 31 of the Act of 1973 .

(2) Unless the context otherwise requires, a cause begun by petition shall be treated as pending for the purposes of these rules notwithstanding that a final decree or order has been made on the petition.

(3) Unless the context otherwise requires, a rule or Part referred to by number means the rule or Part so numbered in these rules.

(4) In these rules a form referred to by number means the form so numbered in Appendix 1 to these rules with such variation as the circumstances of the particular case may require.

(5) In these rules any reference to an Order and rule is—

(a) if prefixed by the letters “ CCR ”, a reference to that Order and rule in the County Court Rules 1981 , and

(b) if prefixed by the letters “ RSC ”, a reference to that Order and rule in the Rules of the Supreme Court 1965 .

(6) References in these rules to a county court shall, in relation to matrimonial proceedings, be construed as references to a divorce county court.

(7) In this rule and in rule 1.4, “matrimonial proceedings” means proceedings of a kind with respect to which divorce county courts have jurisdiction by or under section 33, 34 or 35 of the Act of 1984.

Section 1.3 Application of other rules

(1) Subject to the provisions of these rules and of any enactment the County Court Rules 1981 and the Rules of the Supreme Court 1965 shall apply, with the necessary modifications, to family proceedings in a county court and the High Court respectively.

(2) For the purposes of paragraph (1) any provision of these rules authorising or requiring anything to be done in family proceedings shall be treated as if it were, in the case of proceedings pending in a county court, a provision of the County Court Rules 1981 and, in the case of proceedings pending in the High Court, a provision of the Rules of the Supreme Court 1965.

Section 1.4 County court proceedings in principal registry

(1) Subject to the provisions of these rules, matrimonial proceedings pending at any time in the principal registry which, if they had been begun in a divorce county court, would be pending at that time in such a court, shall be treated, for the purposes of these rules and of any provision of the County Court Rules 1981 and the County Courts Act 1984 , as pending in a divorce county court and not in the High Court.

(2) Unless the context otherwise requires, any reference to a divorce county court in any provision of these rules which relates to the commencement or prosecution of proceedings in a divorce county court, or the transfer of proceedings to or from such a court, includes a reference to the principal registry.

Section 1.5 Computation of time

(1) Any period of time fixed by these rules, or by any rules applied by these rules, or by any decree, judgment, order or direction for doing any act shall be reckoned in accordance with the following provisions of this rule.

(2) Where the act is required to be done not less than a specified period before a specified date, the period starts immediately after the date on which the act is done and ends immediately before the specified date.

(3) Where the act is required to be done within a specified period after or from a specified date, the period starts immediately after that date.

(4) Where, apart from this paragraph, the period in question, being a period of seven days or less, would include a day which is not a business day, that day shall be excluded.

(5) Where the time so fixed for doing an act in the court office expires on a day on which the office is closed, and for that reason the act cannot be done on that day, the act shall be in time if done on the next day on which the office is open.

(6) In these rules “business day” means any day other than—

(a) a Saturday, Sunday, Christmas Day or Good Friday; or

(b) a bank holiday under the Banking and Financial Dealings Act 1971 , in England and Wales.

Section 2.1 Application of Part II

This Part applies—

(a) to causes;

(b) to applications under Part II of the Act of 1973, except sections 27, 32, 33, 35, 36 and 38; and

(c) for specifying the procedure for complying with the requirements of section 41 of the Act of 1973 .

Section 2.2 Cause to be begun by petition

(1) Every cause shall be begun by petition.

(2) Where a petition for divorce, nullity or judicial separation discloses that there is a minor child of the family who is under 16 or who is over that age and is receiving instruction at an educational establishment or undergoing training for a trade or profession, the petition shall be accompanied by a statement, signed by the petitioner personally and if possible agreed with the respondent, containing the information required by Form M4, to which shall be attached a copy of any medical report mentioned therein.

Section 2.3 Contents of petition

Unless otherwise directed, every petition shall contain the information required by Appendix 2 to these rules.

Section 2.4 Petitioner relying on section 11 or 12 of the Civil Evidence Act 1968

(1) A petitioner who, in reliance on section 11 or 12 of the Civil Evidence Act 1968, intends to adduce evidence that a person—

(a) was convicted of an offence by or before a court in the United Kingdom or by a court-martial there or elsewhere, or

(b) was found guilty of adultery in matrimonial proceedings or to be the father of a child in relevant proceedings before any court in England and Wales, or was adjudged to be the father of a child in affiliation proceedings before a court in the United Kingdom,

must include in his petition a statement of his intention with particulars of—

(i) the conviction, finding or adjudication and the date thereof,

(ii) the court or court-martial which made the conviction, finding or adjudication and, in the case of a finding or adjudication, the proceedings in which it was made, and

(iii) the issue in the proceedings to which the conviction, finding or adjudication is relevant.

(2) In this rule “matrimonial proceedings”, “relevant proceedings” and “affiliation proceedings” have the same meanings as in the said section 12.

Section 2.5 Signing of petition

Every petition shall be signed by counsel if settled by him or, if not, by the petitioner’s solicitor in his own name or the name of his firm, or by the petitioner if he sues in person.

Section 2.6 Presentation of petition

(1) A petition may be presented to any divorce county court.

(2) Unless otherwise directed on an application made ex parte, a certificate of the marriage to which the cause relates shall be filed with the petition.

(3) Where a solicitor is acting for a petitioner for divorce or judicial separation, a certificate in Form M3 shall be filed with the petition, unless otherwise directed on an application made ex parte.

(4) Where there is before a divorce county court or the High Court a petition which has not been dismissed or otherwise disposed of by a final order, another petition by the same petitioner in respect of the same marriage shall not be presented without leave granted on an application made in the pending proceedings:

Provided that no such leave shall be required where it is proposed, after the expiration of the period of one year from the date of the marriage, to present a petition for divorce alleging such of the facts mentioned in section 1(2) of the Act of 1973 as were alleged in a petition for judicial separation presented before the expiration of that period.

(5) The petition shall be presented by filing it, together with any statement and report required by rule 2.2(2) in the court office, with as many copies of the petition as there are persons to be served and a copy of the statement and report required by rule 2.2(2) for service on the respondent.

(6) CCR Order 3, rule 4(2) (which, as applied by rule 5 of that Order, deals with the filing and service of petitions) shall not apply, but on the filing of the petition the proper officer shall annex to every copy of the petition for service a notice in Form M5 with Form M6 attached and shall also annex to the copy petition for service on a respondent the copy of any statement and report filed pursuant to paragraph (5) of this rule.

Section 2.7 Parties

(1) Subject to paragraph (2), where a petition alleges that the respondent has committed adultery, the person with whom the adultery is alleged to have been committed shall be made a co-respondent in the cause unless—

(a) that person is not named in the petition, or

(b) the court otherwise directs.

(2) Where a petition alleges that the respondent has been guilty of rape upon a person named, then, notwithstanding anything in paragraph (1) that person shall not be made a co-respondent in the cause unless the court so directs.

(3) Where a petition alleges that the respondent has been guilty of an improper association (other than adultery) with a person named, the court may direct that the person named be made co-respondent in the cause, and for that purpose the district judge may require the proper officer to give notice to the petitioner and to any other party who has given notice of intention to defend of a date, time and place at which the court will consider giving such a direction.

(4) An application for directions under paragraph (1) may be made ex parte if no notice of intention to defend has been given.

(5) Paragraphs (1) and (3) of this rule do not apply where the person named has died before the filing of the petition.

Section 2.8 Discontinuance of cause before service of petition

Before a petition is served on any person, the petitioner may file a notice of discontinuance and the cause shall thereupon stand dismissed.

Section 2.9 Service of petition

(1) Subject to the provisions of this rule and rules 9.3 and 10.6, a copy of every petition shall be served personally or by post on every respondent or co-respondent.

(2) Service may be effected—

(a) where the party to be served is a person under disability within the meaning of rule 9. 1, through the petitioner, and

(b) in any other case, through the court or, if the petitioner so requests, through the petitioner.

(3) Personal service shall in no case be effected by the petitioner himself.

(4) A copy of any petition which is to be served through the court shall be served by post by an officer of the court or, if on a request by the petitioner the district judge so directs, by a bailiff delivering a copy of the petition to the party personally.

(5) For the purposes of the foregoing paragraphs, a copy of a petition shall be deemed to be duly served if—

(a) an acknowledgement of service in Form M6 is signed by the party to be served or by a solicitor on his behalf and is returned to the court office, and

(b) where the form purports to be signed by the respondent, his signature is proved at the hearing or, where the cause is undefended, in the affidavit filed by the petitioner under rule 2.24(3).

(6) Where a copy of a petition has been sent to a party and no acknowledgement of service has been returned to the court office, the district judge, if satisfied by affidavit or otherwise that the party has nevertheless received the document, may direct that the document shall be deemed to have been duly served on him.

(7) Where a copy of a petition has been served on a party personally and no acknowledgement of service has been returned to the court office, service shall be proved by filing an affidavit of service (or, in the case of service by bailiff, an indorsement of service under CCR Order 7, rule 6) showing, in the case of a respondent, the server’s means of knowledge of the identity of the party served.

(8) Where an acknowledgement of service is returned to the court office, the proper officer shall send a photographic copy thereof to the petitioner.

(9) An application for leave to substitute some other mode of service for the modes of service prescribed by paragraph (1) or to substitute notice of the proceedings by advertisement or otherwise, shall be made ex parte by lodging an affidavit setting out the grounds on which the application is made; and the form of any advertisement shall be settled by the district judge:

Provided that no order giving leave to substitute notice of the proceedings by advertisement shall be made unless it appears to the district judge that there is a reasonable probability that the advertisement will come to the knowledge of the person concerned.

(10) CCR Order 7, rule 8 shall apply in relation to service by bailiff under this rule as it applies to service of a summons by bailiff in accordance with rule 10 of that Order.

(11) Where in the opinion of the district judge it is impracticable to serve a party in accordance with any of the foregoing paragraphs or it is otherwise necessary or expedient to dispense with service of a copy of a petition on the respondent or on any other person, the district judge may make an order dispensing with such service.

An application for an order under this paragraph shall be made in the first instance ex parte by lodging an affidavit setting out the grounds of the application, but the district judge may, if he thinks fit, require the attendance of the petitioner on the application.

Section 2.10 Consent to grant of decree

(1) Where, before the hearing of a petition alleging two years, separation coupled with the respondent’s consent to a decree being granted, the respondent wishes to indicate to the court that he consents to the grant of a decree, he shall do so by filing a notice to that effect signed by the respondent personally.

For the purposes of this paragraph an acknowledgement of service containing a statement that the respondent consents to the grant of a decree shall be treated as such a notice if the acknowledgement is signed—

in the case of a respondent acting in person, by the respondent, or

in the case of a respondent represented by a solicitor, by the respondent as well as by the solicitor.

(2) A respondent to a petition which alleges any such fact as is mentioned in paragraph (1) may give notice to the court either that he does not consent to a decree being granted or that he withdraws any consent which he has already given.

Where any such notice is given and none of the other facts mentioned in section 1(2) of the Act of 1973 is alleged, the proceedings on the petition shall be stayed and the proper officer shall thereupon give notice of the stay to all parties.

Section 2.11 Supplemental petition and amendment of petition

(1) Subject to rule 2.14—

(a) a supplemental petition may be filed without leave at any time before an answer is filed but thereafter only with leave; and

(b) a petition may be amended without leave at any time before an answer is filed but thereafter only with leave.

(2) Subject to paragraph (3) an application for leave under this rule—

(a) may, if every opposite party consents in writing to the supplemental petition being filed or the petition being amended, be made by lodging in the court office the supplemental petition or a copy of the petition as proposed to be amended; and

(b) shall, in any other case, be made on notice (or in the High Court by summons) to be served, unless otherwise directed, on every opposite party.

(3) The district judge may, if he thinks fit, require an application for leave to be supported by an affidavit.

(4) An order granting leave shall—

(a) where any party has given notice of intention to defend, fix the time within which his answer must be filed or amended;

(b) where the order is made after directions for trial have been given, provide for a stay of the hearing until after the directions have been renewed.

(5) An amendment authorised to be made under this rule shall be made by filing a copy of the amended petition.

(6) Rules 2.5 and 2.7 shall apply to a supplemental or amended petition as they apply to the original petition.

(7) Unless otherwise directed, a copy of a supplemental or amended petition, together with a copy of the order (if any) made under this rule shall be served on every respondent and co-respondent named in the original petition or in the supplemental or amended petition.

(8) The petitioner shall file the documents required by paragraph (7) to be served on any person and thereupon, unless otherwise directed, rules 2.6(6) and 2.9 shall apply in relation to that person as they apply in relation to a person required to be served with an original petition.

Section 2.12 Filing of answer to petition

(1) Subject to paragraph (2) and to rules 2.10, 2.14 and 2.37, a respondent or co-respondent who—

(a) wishes to defend the petition or to dispute any of the facts alleged in it,

(b) being the respondent wishes to make in the proceedings any charge against the petitioner in respect of which the respondent prays for relief, or

(c) being the respondent to a petition to which section 5(1) of the Act of 1973 applies, wishes to oppose the grant of a decree on the ground mentioned in that subsection,

shall, within 21 days after the expiration of the time limited for giving notice of intention to defend, file an answer to the petition.

(2) An answer may be filed notwithstanding that the person filing the answer has not given notice of intention to defend.

(3) Any reference in these rules to a person who has given notice of intention to defend shall be construed as including a reference to a person who has filed an answer without giving notice of intention to defend.

(4) Where in a cause in which relief is sought under section 12(d) of the Act of 1973 the respondent files an answer containing no more than a simple denial of the facts stated in the petition, he shall, if he intends to rebut the charges in the petition, give the court notice to that effect when filing his answer.

Section 2.13 Filing of reply and subsequent pleadings

(1) A petitioner may file a reply to an answer within 14 days after he has received a copy of the answer pursuant to rule 2.17.

(2) If the petitioner does not file a reply to an answer, he shall, unless the answer prays for a decree, be deemed, on making a request for directions for trial, to have denied every material allegation of fact made in the answer.

(3) No pleading subsequent to a reply shall be filed without leave.

Section 2.14 Filing and amendment of pleadings after directions for trial

No pleading shall be filed or amended without leave after directions for trial have been given.

Section 2.15 Contents of answer and subsequent pleadings

(1) Where an answer, reply or subsequent pleading contains more than a simple denial of the facts stated in the petition, answer or reply, as the case may be, the pleading shall set out with sufficient particularity the facts relied on but not the evidence by which they are to be proved and, if the pleading is filed by the husband or wife, it shall, in relation to those facts, contain the information required in the case of a petition by paragraph 1(k) of Appendix 2.

(2) Unless otherwise directed, an answer by a husband or wife who disputes any statement required by paragraphs 1(f), (g) and (h) of Appendix 2 to be included in the petition shall contain full particulars of the facts relied on.

(3) Paragraph 4(a) of Appendix 2 shall, where appropriate, apply with the necessary modifications, to a respondent’s answer as it applies to a petition:

Provided that it shall not be necessary to include in the answer any claim for costs against the petitioner.

(4) Where an answer to any petition contains a prayer for relief, it shall contain the information required by paragraph 1(j) of Appendix 2 in the case of the petition in so far as it has not been given by the petitioner.

(5) Where a party’s pleading includes such a statement as is mentioned in rule 2.4, then if the opposite party—

(a) denies the conviction, finding or adjudication to which the statement relates, or

(b) alleges that the conviction, finding or adjudication was erroneous, or

(c) denies that the conviction, finding or adjudication is relevant to any issue in the proceedings,

he must make the denial or allegation in his pleading.

(6) Rules 2.4 and 2.5 shall apply, with the necessary modifications, to a pleading other than a petition as they apply to a petition.

Section 2.16 Allegation against third person in pleading

(1) Rules 2.7 and 2.9 shall apply, with the necessary modifications, to a pleading other than a petition as they apply to a petition, so however that for the references in those rules to a co-respondent there shall be substituted references to a party cited.

(2) Rule 2.12 shall apply, with the necessary modifications, to a party cited as it applies to a co-respondent.

Section 2.17 Service of pleadings

A party who files an answer, reply or subsequent pleading shall at the same time file a copy for service on every opposite party, and thereupon the proper officer shall annex to every copy for service on a party cited in the pleading a notice in Form M5 with Form M6 attached and shall send a copy to every other opposite party.

Section 2.18 Supplemental answer and amendment of pleadings

Rule 2.11 shall apply, with the necessary modifications, to the filing of a supplemental answer, and the amendment of a pleading or other document not being a petition, as it applies to the filing of a supplemental petition and the amendment of a petition.

Section 2.19 Particulars

(1) A party on whom a pleading has been served may in writing request the party whose pleading it is to give particulars of any allegation or other matter pleaded and, if that party fails to give the particulars within a reasonable time, the party requiring them may apply for an order that the particulars be given.

(2) The request or order in pursuance of which particulars are given shall be incorporated with the particulars, each item of the particulars following immediately after the corresponding item of the request or order.

(3) A party giving particulars, whether in pursuance of an order or otherwise, shall at the same time file a copy of them.

Section 2.20 Discovery of documents in defended cause

(1) RSC Order 24 (discovery and inspection of documents) shall apply to a defended cause begun by petition whether pending in the High Court or county court as it applies to an action begun by writ, with the following modifications—

(a) the second paragraph of rule 2(1) and rules 2(2) to (4), rules 4(2), 6 and 7A shall be omitted,

(b) in rule 16(1) the words from “including” to the end shall be omitted,

(c) in rule 2(7) for the words “the summons for directions in the action is taken out” there shall be substituted the words “directions for trial are given”.

(2) For the purposes of RSC Order 24, rule 2(1) as applied by paragraph (1) of this rule, pleadings shall be deemed to be closed at the expiration of 14 days after service of the answer, and are deemed to be closed then notwithstanding that any request or order for particulars previously made has not been complied with.

(3) The petitioner and any party who has filed an answer shall be entitled to have a copy of any list of documents served on any other party under RSC Order 24 as applied by paragraph (1) of this rule, and such copy shall, on request, be supplied to him free of charge by the party who served the list.

In this paragraph “list of documents” includes an affidavit verifying the list.

Section 2.21 Discovery by interrogatories in defended cause

(1) RSC Order 26 (which deals with discovery by interrogatories) shall apply to a defended cause begun by petition and pending in the High Court as it applies to a cause within the meaning of that Order, but with the omission of—

(a) rule 2(1)(b),

(b) in rule 4(1) the words “or the notice under Order 25, rule 7,”, and

(c) in rule 6(1) the words from “including” to the end.

(2) A copy of the proposed interrogatories shall be filed when they are served under RSC Order 26, rule 3(1) or when a summons for an order under RSC Order 26, rule 1(2) is issued.

(3) Where a defended cause is pending in a divorce county court RSC Order 26 as applied by CCR Order 14, rule I I shall apply, and references in this rule to provisions of the said Order 26 shall be construed as references to those provisions as so applied.

Section 2.22 Medical examination in proceedings for nullity

(1) In proceedings for nullity on the ground of incapacity to consummate the marriage the petitioner shall, subject to paragraph (2), apply to the district judge to determine whether medical inspectors should be appointed to examine the parties.

(2) An application under paragraph (1) shall not be made in an undefended cause—

(a) if the husband is the petitioner, or

(b) if the wife is the petitioner and

(i) it appears from the petition that she was either a widow or divorced at the time of the marriage in question, or

(ii) it appears from the petition or otherwise that she has borne a child, or

(iii) a statement by the wife that she is not a virgin is filed;

unless, in any such case, the petitioner is alleging his or her own incapacity.

(3) References in paragraphs (1) and (2) to the petitioner shall, where the cause is proceeding only on the respondent’s answer or where the allegation of incapacity is made only in the respondent’s answer, be construed as references to the respondent.

(4) An application under paragraph (1) by the petitioner shall be made—

(a) where the respondent has not given notice of intention to defend, after the time limited for giving the notice has expired;

(b) where the respondent has given notice of intention to defend, after the expiration of the time allowed for filing his answer or, if he has filed an answer, after it has been filed;

and an application under paragraph (1) by the respondent shall be made after he has filed an answer.

(5) Where the party required to make an application under paragraph (1) fails to do so within a reasonable time, the other party may, if he is prosecuting or defending the cause, make an application under that paragraph.

(6) In proceedings for nullity on the ground that the marriage has not been consummated owing to the wilful refusal of the respondent, either party may apply to the district judge for the appointment of medical inspectors to examine the parties.

(7) If the respondent has not given notice of intention to defend, an application by the petitioner under paragraph (1) or (6) may be made ex parte.

(8) If the district judge hearing an application under paragraph (1) or (6) considers it expedient to do so, he shall appoint a medical inspector or, if he thinks it necessary, two medical inspectors to examine the parties and report to the court the result of the examination.

(9) At the hearing of any such proceedings as are referred to in paragraph (1) the court may, if it thinks fit, appoint a medical inspector or two medical inspectors to examine any party who has not been examined or to examine further any party who has been examined.

(10) The party on whose application an order under paragraph (8) is made or who has the conduct of proceedings in which an order under paragraph (9) has been made for the examination of the other party, shall serve on the other party notice of the date, time and place appointed for his or her examination.

Section 2.23 Conduct of medical examination

(1) Every medical examination under rule 2.22 shall be held at the consulting room of the medical inspector or, as the case may be, of one of the medical inspectors appointed to conduct the examination:

Provided that the district judge may, on the application of a party, direct that the examination of that party shall be held at the court office or at such other place as the district judge thinks convenient.

(2) Every party presenting himself for examination shall sign, in the presence of the inspector or inspectors, a statement that he is the person referred to as the petitioner or respondent, as the case may be, in the order for the examination, and at the conclusion of the examination the inspector or inspectors shall certify on the statement that it was signed in his or their presence by the person who has been examined.

(3) Every report made in pursuance of rule 2.22 shall be filed and either party shall be entitled to be supplied with a copy on payment of the prescribed fee.

(4) In an undefended cause it shall not be necessary for the inspector or inspectors to attend and give evidence at the trial unless so directed.

(5) In a defended cause, if the report made in pursuance of rule 2.22 is accepted by both parties, notice to that effect shall be given by the parties to the district judge and to the inspector or inspectors not less than seven clear days before the date fixed for the trial; and where such notice is given, it shall not be necessary for the inspector or inspectors to attend and give evidence at the trial.

(6) Where pursuant to paragraphs (4) or (5) the evidence of the inspector or inspectors is not given at the trial, his or their report shall be treated as information furnished to the court by a court expert and be given such weight as the court thinks fit.

Section 2.24 Directions for trial

(1) On the written request of the petitioner or of any party who is defending a cause begun by petition the district judge shall give directions for the trial of the cause if he is satisfied—

(a) that a copy of the petition (including any supplemental or amended petition) and any subsequent pleading has been duly served on every party required to be served and, where that party is a person under disability, that any affidavit required by rule 9.3(2) has been filed;

(b) if no notice of intention to defend has been given by any party entitled to give it, that the time limited for giving such notice has expired;

(c) if notice of intention to defend has been given by any party, that the time allowed him for filing an answer has expired;

(d) if an answer has been filed, that the time allowed for filing any subsequent pleading has expired;

(e) in proceedings for nullity—

(i) that any application required by rule 2.22(1) has been made, and

(ii) where an order for the examination of the parties has been made on an application under rule 2.22, that the notice required by paragraph (10) of that rule has been served and that the report of the inspector or inspectors has been filed.

(2) Subject to paragraph (3), where the cause is pending in a divorce county court other than the principal registry and is to be tried at that court, the district judge shall, if he considers it practicable to do so, given directions for trial.

(3) Where the cause is an undefended cause for divorce or judicial separation and, in a case to which section 1(2)(d) of the Act of 1973 applies, the respondent has filed a notice under rule 2.10(1) that he consents to the grant of a decree, then, unless otherwise directed there shall be filed with the request for directions for trial an affidavit by the petitioner—

(a) containing the information required by Form M7(a), (b), (c), (d), or (e) (whichever is appropriate) as near as may be in the order there set out, together with any corroborative evidence on which the petitioner intends to rely, and

(b) verifying, with such amendments as the circumstances may require, the contents of any statement of arrangements filed by the petitioner under rule 2.2(2),

and the district judge shall give directions for trial by entering the cause in a list to be known as the special procedure list.

(4) In the case of a defended cause the district judge may treat the request for directions for trial as a summons or application for directions so as to enable him to give such directions with regard to—

(a) the future course of the cause,

(b) any application made therein for ancillary relief or for an order relating to a child, and

(c) the provision of evidence relating to the arrangements or proposed arrangements for the children of the family,

as appear to be necessary or desirable for securing the just, expeditious and economical disposal of the cause or application; and the proper officer shall give the parties notice of a date, time and place at which the request will be considered.

(5) In any other case the district judge shall give directions for trial by requiring the proper officer to set the cause down for trial and give notice that he has done so to every party to the cause.

(6) Except where evidence has been provided under paragraph (3)(b), directions for trial under this rule shall, unless the court orders otherwise, include a direction to the petitioner to file an affidavit verifying, with such amendments as the circumstances may require, the contents of any statement of arrangements filed by the petitioner under rule 2.2(2).

(7) In the case of an undefended cause proceeding on the respondent’s answer, paragraphs (3) and (6) shall have effect as if for the references to the petitioner and respondent there were substituted references to the respondent and the petitioner respectively.

Section 2.25 Determination of place of trial

(1) Directions for trial, except where given under rule 2.24(3), shall determine the place of trial.

(2) In the case of an undefended cause to which rule 2.24(3) does not apply, the request for directions shall state—

(a) the place of trial desired,

(b) the place where the witnesses whom it is proposed to call at the trial reside,

(c) an estimate of the probable length of trial, and

(d) any other fact which may be relevant for determining the place of trial.

(3) In the case of a defended cause, the party intending to make a request for directions shall, not less than eight days before making his request, give notice of the place of trial desired to every other party who has given notice of intention to defend and, if the party intending to make the request is the respondent, to the petitioner.

The notice shall state the number of witnesses to be called on behalf of the party giving the notice and the places where he and his witnesses reside.

(4) If any party to whom notice is given under paragraph (3) does not consent to the place of trial specified in the notice, he may, within eight days after receiving it, apply to the district judge to direct trial at some other place; and if he does consent to the place so specified, he shall within that period send to the party by whom the notice was given a statement signed by his solicitor (or by him, if he is acting in person) indicating that the notice has been received and specifying the number of witnesses to be called on his behalf and the places where he and his witnesses reside.

(5) Where no application for trial at some other place is made under paragraph (4) within the period specified in that paragraph, the party making the request for directions shall state in his request—

(a) the place of trial desired;

(b) the number of witnesses to be called on his behalf and the places where he and his witnesses reside;

(c) if it be the case, that no statement has been received from any party (naming him) to whom notice was given under paragraph (3); and

(d) an estimate of the probable length of trial;

and shall file with the request any statement sent to him by any other party in accordance with paragraph (4).

(6) If circumstances arise tending to show that the estimate of the probable length of the trial given under paragraph (2)(c) or (5)(d) or made on an application under paragraph (4) is inaccurate, a further estimate shall be filed.

(7) In determining the place of trial the district judge shall have regard to all the circumstances of the case so far as it is possible for him to do so on the basis of the information available to him, including the convenience of the parties and their witnesses, the costs likely to be incurred, the date on which the trial can take place and the estimated length of the trial.

(8) Directions determining the place of trial of any cause may be varied by the district judge of the court or registry in which the cause is proceeding on the application of any party to the cause.

Section 2.26 Directions as to allegations under section 1(2)(b) of Act of 1973

(1) Where in a defended cause the petitioner alleges that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent, the district judge may, of his own motion on giving directions for trial or on the application of any party made at any time before the trial, order or authorise the party who has made the request for or obtained such directions to file a schedule of the allegations and counter-allegations made in the pleadings or particulars.

(2) Where such an order is made or authority given, the allegations and counter-allegations shall, unless otherwise directed, be listed concisely in chronological order, each counter-allegation being set out against the allegation to which it relates, and the party filing the schedule shall serve a copy of it on any other party to the cause who has filed a pleading.

Section 2.27 Stay under Domicile and Matrimonial Proceedings Act 1973

(1) An application to the court by the petitioner or respondent in proceedings for divorce for an order under paragraph 8 of Schedule I to the Domicile and Matrimonial Proceedings Act 1973 (in this rule referred to as “Schedule 1”) shall be made to the district judge, who may determine the application or refer the application, or any question arising thereon, to a judge for his decision as if the application were an application for ancillary relief.

(2) An application for an order under paragraph 9 of Schedule 1 shall be made to a judge.

(3) Where, on giving directions for trial, it appears to the district judge from any information given pursuant to paragraph 1(j) of Appendix 2 or rule 2.15(4) or paragraph (4) of this rule that any proceedings which are in respect of the marriage in question or which are capable of affecting its validity or subsistence are continuing in any country outside England and Wales and he considers that the question whether the proceedings on the petition should be stayed under paragraph 9 of Schedule I ought to be determined by the court, he shall fix a date, time and place for the consideration of that question by a judge and give notice thereof to all parties.

In this paragraph “proceedings continuing in any country outside England and Wales” has the same meaning as in paragraph 1(j) of Appendix 2.

(4) Any party who makes a request for directions for trial in matrimonial proceedings within the meaning of paragraph 2 of Schedule I shall, if there has been a change in the information given pursuant to paragraph 1(j) of Appendix 2 and rule 2.15(4) file a statement giving particulars of the change.

(5) An application by a party to the proceedings for an order under paragraph 10 of Schedule I may be made to the district judge, and he may determine the application or may refer the application, or any question arising thereon, to a judge as if the application were an application for ancillary relief.

Section 2.28 Evidence at trial of cause

(1) Subject to the provisions of this rule and rules 2.29, 2.36 and 10. 14 and of the Civil Evidence Act 1968 and any other enactment, any fact required to be proved by the evidence of witnesses at the trial of a cause begun by petition shall be proved by the examination of the witnesses orally and in open court.

(2) Nothing in this rule and rules 2.29 and 10. 14 shall affect the power of the judge at the trial to refuse to admit any evidence if in the interest of justice he thinks fit to do so.

(3) The court may order—

(a) that the affidavit of any witness may be read at the trial on such conditions as the court thinks reasonable;

(b) that the evidence of any particular fact shall be given at the trial in such manner as may be specified in the order and in particular—

(i) by statement on oath of information or belief, or

(ii) by the production of documents or entries in books, or

(iii) by copies of documents or entries in books, or

(iv) in the case of a fact which is or was a matter of common knowledge either generally or in a particular district, by the production of a specified newspaper containing a statement of that fact; and

(c) that not more than a specified number of expert witnesses may be called.

(4) An application to the district judge for an order under paragraph (3) shall—

(a) if no notice of intention to defend has been given, or

(b) if the petitioner and every party who has given notice of intention to defend consents to the order sought, or

(c) if the cause is undefended and directions for trial have been given, be made ex parte by filing an affidavit stating the grounds on which the application is made.

(5) Where an application is made before the trial for an order that the affidavit of a witness may be read at the trial or that evidence of a particular fact may be given at the trial by affidavit, the proposed affidavit or a draft thereof shall be submitted with the application; and where the affidavit is sworn before the hearing of the application and sufficiently states the ground on which the application is made, no other affidavit shall be required under paragraph (4).

Section 2.29 Evidence by deposition

The court may, on the application of any party to a cause begun by petition, make an order under CCR Order 20, rule 18, or (if the cause is pending in the High Court) under RSC Order 39, rule 1, for the examination on oath of any person; and CCR Order 20, rule 18 or (if the cause is pending in the High Court) RSC Order 38, rule 9, and Order 39, rules I to 14 (which regulate the procedure where evidence is to be taken by deposition) shall have effect accordingly with the appropriate modifications.

Section 2.30 Issue of witness summons or subpoena

(1) A witness summons in a cause pending in a divorce county court may be issued in that court or in the court of trial at which the cause is to be tried.

(2) A writ of subpoena in a cause pending in the High Court may issue out of—

(a) the registry in which the cause is proceeding, or

(b) if the cause is to be tried at the Royal Courts of Justice, the principal registry; or

(c) if the cause is to be tried at a divorce town, the registry for that town.

Section 2.31 Hearsay and expert evidence in High Court

RSC Order 3 8, rule 2 1, shall have effect in relation to a defended cause in the High Court as if—

(a) for the reference in paragraph (4) to Order 38, rule 3, there were substituted a reference to rules 2.28, 2.29 and 10. 12 of these rules; and

(b) paragraph (5) were omitted.

Section 2.32 Mode and place of trial

(1) Unless otherwise directed and subject to rule 2.36 every cause and any issue arising therein shall be tried by a judge without a jury.

(2) Any cause begun by petition (except one entered in the special procedure list) which is pending in a divorce county court may be tried at any court of trial.

(3) Any cause begun by petition which is pending in the High Court may be tried at the Royal Courts of Justice or at any divorce town.

(4) A judge or the district judge of the registry for the divorce town at which any cause has been set down for trial may, where it appears to him that the cause cannot conveniently be tried at that town, order that it be tried at some other divorce town; and rule 10. 10(4) and (5) shall apply to such an order as it applies to an order under paragraph (1) of that rule.

(5) As soon as practicable after a cause pending in a divorce county court has been set down for trial, the proper officer of the court of trial shall fix the date, place and, as nearly as may be, the time of the trial and give notice thereof to every party to the cause.

(6) In these rules any reference to the registry for the divorce town at which a cause is to be tried shall, in relation to a divorce town in which there is no district registry, be construed as a reference to such district registry as the Lord Chancellor may designate for the purpose or, if the divorce town is not situated within the district of any district registry, as a reference to the principal registry.

Section 2.33 Trial of issue

Where directions are given for the separate trial of any issue and those directions have been complied with, the district judge shall—

(a) if the issue arises on an application for ancillary relief or an application with respect to any child or alleged child of the family, proceed as if the issue were a question referred to a judge on an application for ancillary relief and rule 2.65 shall apply accordingly;

(b) in any other case, set the issue down for trial and thereupon rule 2.32(5) and (6) shall apply as if the issue were a cause.

Section 2.34 Exercise of district judge’s jurisdiction in causes set down for trial

(1) The district judge of the registry for the divorce town at which a cause has been set down for trial or, in the case of a cause set down for trial at the Royal Courts of Justice, a district judge of the principal registry may, if it appears to him to be desirable having regard to the proximity of the date of trial or otherwise, exercise in the cause any jurisdiction of the district judge of the registry in which the cause is proceeding.

(2) RSC Order 34, rule 5(3) shall apply, with the necessary modifications, to a defended cause pending in the High Court as it applies to an action begun by writ.

Section 2.35 Further provisions as to date of trial

Except with the consent of the parties or by leave of a judge, no cause, whether defended or undefended, shall be tried until after the expiration of 10 days from the date on which directions for trial were given:

Provided that nothing in this rule shall apply to a cause entered in the special procedure list.

Section 2.36 Disposal of causes in special procedure list

(1) As soon as practicable after a cause has been entered in the special procedure list, the district judge shall consider the evidence filed by the petitioner and—

(a) if he is satisfied that the petitioner has sufficiently proved the contents of the petition and is entitled to a decree the district judge shall so certify;

(b) if he is not so satisfied he may either give the petitioner an opportunity of filing further evidence or remove the cause from the special procedure list whereupon rule 2.24(3) shall cease to apply.

(2) On the making of a certificate under paragraph (1) a date shall be fixed for the pronouncement of a decree by a judge or district judge in open court and the proper officer shall send to each party notice of the date and place so fixed and a copy of the certificate, but subject to paragraph (3) it shall not be necessary for any party to appear on that occasion.

(3) Where the district judge makes a certificate under paragraph (1) and the petition contains a prayer for costs, the district judge may—

(a) if satisfied that the petitioner is entitled to such costs, include in his certificate a statement to that effect;

(b) if not so satisfied, give to any party who objects to paying such costs notice that, if he wishes to proceed with his objection, he must attend before the court on the date fixed pursuant to paragraph (2).

(4) Within 14 days after the pronouncement of a decree in accordance with a certificate under paragraph (1) any person may inspect the certificate and the evidence filed under rule 2.24(3) and may bespeak copies on payment of the prescribed fee.

Section 2.37 Right to be heard on question of costs

(1) A respondent, co-respondent or party cited may, without filing an answer, be heard on any question as to costs, but the court may at any time order any party objecting to a claim for costs to file and serve on the party making the claim a written statement setting out the reasons for his objection.

(2) A party shall be entitled to be heard on any question pursuant to paragraph (1) whether or not he has returned to the court office an acknowledgement of service stating his wish to be heard on that question.

(3) In proceedings after a decree nisi of divorce or a decree of judicial separation no order the effect of which would be to make a co-respondent or party cited liable for costs which are not directly referable to the decree shall be made unless the co-respondent or party cited is a party to such proceedings or has been given notice of the intention to apply for such an order.

Section 2.38 Respondent’s statement as to arrangements for children

(1) A respondent on whom there is served a statement in accordance with rule 2.2(2) may, whether or not he agreed that statement, file in the court office a written statement of his views on the present and proposed arrangements for the children, and on receipt of such a statement from the respondent the proper officer shall send a copy to the petitioner.

(2) Any such statement of the respondent’s views shall, if practicable, be filed within the time limited for giving notice of intention to defend and in any event before the district judge considers the arrangements or proposed arrangements for the upbringing and welfare of the children of the family under section 41(1) of the Act of 1973 .

Section 2.39 Procedure for complying with section 41 of Act of 1973

(1) Where no such application as is referred to in rule 2.40(1) is pending the districtjudge shall, after making his certificate under rule 2.36(1)(a) or after the provision of evidence pursuant to a direction under rule 2.24(4), as the case may be, proceed to consider the matters specified in section 4 1 (1) of the Act of 197 3 in accordance with the following provisions of this rule.

(2) Where, on consideration of the relevant evidence, including any further evidence or report provided pursuant to this rule and any statement filed by the respondent under rule 2.38, the district judge is satisfied that—

(a) there are no children of the family to whom section 41 of the Act of 1973 applies, or

(b) there are such children but the court need not exercise its powers under the Act of 1989 with respect to any of them or give any direction under section 41(2) of the Act of 1973,

the district judge shall certify accordingly and, in a case to which sub-paragraph (b) applies, the petitioner and the respondent shall each be sent a copy of the certificate by the proper officer.

(3) Where the district judge is not satisfied as mentioned in paragraph (2) above he may, without prejudice to his powers under the Act of 1989 or section 41(2) of the Act of 1973, give one or more of the following directions—

(a) that the parties, or any of them, shall file further evidence relating to the arrangements for the children (and the direction shall specify the matters to be dealt with in the further evidence);

(b) that a welfare report on the children, or any of them, be prepared;

(c) that the parties, or any of them, shall attend before him at the date, time and place specified in the direction;

and the parties shall be notified accordingly.

(4) Where the court gives a direction under section 41(2) of the Act of 1973, notice of the direction shall be given to the parties.

(5) In this rule “parties” means the petitioner, the respondent and any person who appears to the court to have the care of the child.

Section 2.40 Applications relating to children of the family

(1) Where a cause is pending, an application by a party to the cause or by any other person for an order under any provision of Part I or Part II of the Act of 1989 in relation to a child of the family shall be made in the cause; and where the applicant is not a party and has obtained such leave as is required under the Act of 1989 to make the application, no leave to intervene in the cause shall be necessary.

(2) If, while a cause is pending, proceedings relating to any child of the family are begun in any other court, a concise statement of the nature of the proceedings shall forthwith be filed by the person beginning the proceedings or, if he is not a party to the cause, by the petitioner.

Section 2.41 Restoration of matters adjourned at the hearing

Where at the trial of a cause any application is adjourned by the court for hearing in chambers, it may be restored—

(a) in the High Court, by notice without a summons;

(b) in a divorce county court, on notice under CCR Order 13, rule 1 (which deals with applications in the course of proceedings); or

(c) in the High Court or a divorce county court, by notice given by the district judge when in his opinion the matter ought to be further considered;

and the notice shall state the date, time and place for the hearing of the restored application and be served on every party concerned.

Section 2.42 Application for re-hearing

(1) An application for re-hearing of a cause tried by a judge alone (whether in the High Court or a divorce county court) where no error of the court at the hearing is alleged, shall be made to a judge.

(2) Unless otherwise directed, the application shall be made to the judge by whom the cause was tried and shall be heard in open court.

(3) The application shall be made—

(a) in the High Court, by a notice to attend before the judge on a day specified in the notice, and

(b) in the county court, on notice in accordance with CCR Order 13, rule 1 (which deals with applications in the course of proceedings),

and the notice shall state the grounds of the application.

(4) Unless otherwise directed, the notice must be issued within six weeks after the judgment and served on every other party to the cause not less than 14 days before the day fixed for the hearing of the application.

(5) The applicant shall file a certificate that the notice has been duly served on each person required to be served therewith.

(6) The application shall be supported by an affidavit setting out the allegations on which the applicant relies or exhibiting a copy of any pleading which he proposes to file if the application is granted, and a copy of the affidavit shall be served on every other party to the cause.

(7) Not less than seven days before the application is heard the applicant shall file a copy of a transcript of so much as is relevant of any official shorthand note of the proceedings at the trial.

(8) Where a party wishes to appeal against a decree absolute of divorce or nullity of marriage, the question whether he has had the time and opportunity to appeal from the decree nisi on which the decree absolute was founded shall be determined on an application for a re-hearing under this rule.

(9) Any other application for re-hearing shall be made by way of appeal to the Court of Appeal.

(10) This rule shall apply, with the necessary modifications, to a cause disposed of under rule 2.36 as it applies to a cause tried by a judge alone, save that where in such a case the decree was pronounced by a district judge the application shall be made to a district judge.

Section 2.43 Decrees and orders

(1) Except in a case to which rule 2.61 (consent orders) applies, every decree, every order made in open court and every other order which is required to be drawn up shall be drawn up

(a) in the case of a decree or order made at a divorce county court, by the proper officer of that court;

(b) in the case of a decree or order made at the Royal Courts of Justice, by the proper officer of the principal registry;

(c) in the case of a decree or order made at a divorce town, by the proper officer of the registry for that town.

(2) CCR Order 22, rule 7 (which deals among other things with the settlement of judgments) shall not apply to a decree made in a cause pending in a divorce county court.

Section 2.44 Application for rescission of decree

(1) An application by a respondent under section 10(1) of the Act of 1973 for the rescission of a decree of divorce shall be made to a judge and shall be heard in open court, save that where the decree was pronounced by a district judge the application shall be made to a district judge.

(2) Paragraphs (3) and (5) of rule 2.42 shall apply to an application under this rule as they apply to an application under that rule.

(3) Unless otherwise directed, the notice of the application shall be served on the petitioner not less than 14 days before the day fixed for the hearing of the application.

(4) The application shall be supported by an affidavit setting out the allegations on which the applicant relies and a copy of the affidavit shall be served on the petitioner.

Section 2.45 Application under section 10(2) of Act of 1973

(1) An application by a respondent to a petition for divorce for the court to consider the financial position of the respondent after the divorce shall be made by notice in Form M12.

(2) Where a petitioner is served with a notice in Form M 1 2, then unless he has already filed an affidavit under rule 2.58(2) he shall, within 14 days after service of the notice upon him, file an affidavit in answer to the application containing full particulars of his property and income and, in default, the court may order him to do so.

(3) Within 14 days after service upon him of any affidavit under paragraph (2) or within such other time as the court may fix, the respondent shall file an affidavit in reply containing full particulars of his property and income, unless already given in an affidavit filed by him under rule 2.58(3).

(4) The powers of the court on hearing the application may be exercised by the district judge.

(5) Where the petitioner has relied on the fact of two or five years' separation and the court has granted a decree nisi without making any finding as to any other fact mentioned in section 1(2) of the Act of 1973, the proper officer shall fix an appointment for the hearing; and rules 2.62(3) to (7) and 10.10 shall apply as if the application were an application for ancillary relief.

(6) A statement of any of the matters mentioned in section 10(3) of the Act of 1973 with respect to which the court is satisfied, or, where the court has proceeded under section 10(4), a statement that the conditions for which that subsection provides have been fulfilled, shall be entered in the records of the court.