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Form 13A: a step forward

17 September 12

Effects of the new rule requiring details of assets and liabilities to be lodged at the outset of a sheriff court divorce or dissolution case where financial provision is sought

by Jenny Smith

As of 1 August 2012, an amendment to the Sheriff Court Ordinary Cause Rules requires Form 13A (in divorce cases) or CP13A (in dissolution of civil partnership cases) to be lodged where financial provision is sought. The form must be lodged along with the initial writ or minute of amendment, and with the defences or answers.

Its purpose, according to Stephen Brand of the Sheriff Court Rules Council, is to get parties to disclose details of their assets and liabilities earlier, so hopefully reducing the need to seek orders compelling disclosure, and generally expediting the course of the litigation.

The form is headed as a statement of matrimonial or civil partnership property. The pursuer or defender must list all his/her assets, including jointly owned assets, together with details of liabilities, as at the relevant date. The form will flush out any dispute over the relevant date.

The form must be signed by the party, and not by agents. While it stops short of being an affidavit, the party must certify the information is correct to the best of his/her knowledge and belief.

So, from the outset, parties will be made aware of the importance of full and frank disclosure. While practitioners, as a matter of course, highlight the need to disclose and the consequences of failure, parties will now need to take a more active part. I wonder whether any will “confess” on being given the form to sign.

There will be cases where a party simply does not know the extent of their assets, such as where the other party took responsibility for managing the finances. Generally, though, parties will have at least a rough idea of what they own and owe. Taking time to cover this with clients before raising proceedings will help ensure pleadings are as detailed and accurate as possible from the outset. It will highlight whether there are special circumstances which require to be pled. Gaps in information can be identified early on, and remedial steps taken.

Vouching of listed assets and liabilities is not required at this stage, nor are valuations. It was recognised that this could hold cases up at such an early stage.

How will the court view a failure to disclose on the form which subsequently comes to light? There is no penalty. However, it should assist in arguing expenses. The court can be asked to draw an inference from a failure to disclose.

The form does not require information on a party’s resources, or their outgoings. In that respect, it does not go nearly as far as the English Form E, which requires information both on a party’s capital position and their income and expenditure. Form E is exchanged simultaneously by parties, though later in the proceedings than Form 13A. It needs to be sworn. It is extremely detailed, which means the legal expense in preparing it can be significant. However, it also means there is a comprehensive package of information, rather than our perhaps more piecemeal information-gathering process.

The other benefit of the English system is the financial dispute resolution (FDR) hearing. This is a “without prejudice” negotiation hearing, where the judge hears both parties and takes a view. The judge has no power to impose a decision, but this proactive approach means that the majority of cases settle at this stage.

There is a clear need to review case management in our jurisdiction, especially in light of the Supreme Court’s heavy criticism of court procedure in B v G [2012] UKSC 21. The Scottish Government aims to have a draft bill reforming the civil court system by the end of this year. Consideration is being given to the introduction of a case management hearing, perhaps akin to the English FDR. This would take place after the options hearing but before the actual proof. There is scope in the rules to have pre-proof hearings, and these could be used more.

A practice note was issued by Glasgow Sheriff Court earlier this year with the specific purpose of securing efficient management of procedure in family actions. Witness summaries must be lodged before the pre-proof hearing. Reports from experts must be exchanged, and experts must meet before proof, with agents then lodging in process details of the issues on which the experts disagree. The aim is to make parties, and their agents, consider their case thoroughly, as early as possible before proof.

Too often, our clients want their day in court. Unfortunately, our system means they rarely have a clear idea of what that actually entails, and how their case may be decided, until late on in the process. By then, considerable time and money have been spent. The introduction of Form 13A is a step in the right direction. More is needed. We as practitioners all have a part to play in this. The aim should be to work towards increased efficiency, reduced expense and, in the end (hopefully) better informed decision-making, whether by clients or the court.

Jenny Smith, senior associate, mhdlaw LLP

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