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Enforcing a financial order


For many years the beneficiary of a financial order has on occasions experienced difficulty in enforcing certain types of order because of the complexity of the rules around how an application to court needs to be worded.

 

In the case of W v H 2015 the High Court has recently considered the situation and has made life easier for the enforcer.

 

Often the complete implementation of agreed terms depends on "undertakings" (ie promises to the court) being given and fulfilled. However the route to enforcement has been by contempt of court proceedings the penalty for which may be imprisonment. The enforcer has a very high hurdle to clear in establishing breach because the sanction of the deprivation of an individual of his or her liberty has always been regarded as an extremely serious matter. It is arguable that the system had become so clogged with procedural requirements that we had lost sight of the real issue which was that someone somewhere had not done what had been promised or ordered.

 

On an application to enforce I t is necessary to set out "in full" the facts of the alleged breach. The term "in full" had become interpreted to mean almost faultlessly and any slight fault had on occasions led to allegations of breach going unproved. Any court system has to beware bringing itself into disrepute if apparently obvious injustices go unresolved. W v H deals with that issue.

 

It is now established that breach must be "wilful" which is interpreted as deliberate rather than with bad intention. Providing the person who is alleged to be in breach knows what the allegation is, can be established to have known about the breach and cannot establish any good reason why the breach should go unpunished it appears that the court will intervene. The liberty of the individual remains safeguarded. However if there is a minor error in the paperwork the court is still able to go ahead and deal with the allegation if the error will not cause a serious injustice. A mere technical error may no longer be sufficient to save someone who is knowingly in breach or a promise or order.

 

Ian Stirzaker

 

Ian is the Senior Partner and Head of Family Law at SME Solicitors. Please contact him or Joanna Gardner for specialist help and advice in all aspects of family law at ian.stirzaker@smesolicitors.co.uk or joanna.gardner@smesolicitors.co.uk

Added: 15 Jun 2016 15:03


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