A court order is, of course, worthless unless it can be enforced. Unfortunately, family court orders, particularly those relating to financial arrangements, are all too often not complied with. I can attest to this not just from my 25-odd years practising family law, but also from the many queries my blog receives asking how to enforce orders.
Of course, the ultimate sanction of the court is to commit the ‘offending’ party to prison for contempt of court in failing to obey the order. Obviously, this is a very serious step for a court to take. It is also quite controversial, with many libertarians and others concerned that it is used sparingly and properly. For this reason more judgments involving committal proceedings have been published recently, in an effort to show how the courts operate and, hopefully, to show the care that judges take before making committal orders.
Pocock was a county court case that I’m sure would not have been considered to be of sufficient interest to publish a year ago. It concerned a consent order reached between the parties on the 22nd of August 2011, under which the husband had agreed to transfer the former matrimonial home to the wife, to pay the mortgage repayments and to redeem the mortgage on or before the 9th of September 2011.
The redemption of the mortgage has not happened and the mortgage payments have only been made sporadically. Obviously, this has caused considerable stress to the wife, who has had to return to the court repeatedly to ensure that the mortgage is paid and she does not lose the house.
The wife applied for the husband’s committal to prison for breach of the order. Unfortunately, the report does not tell us how many times the wife has returned to the court, only that this was “the most recent application in a long line of applications that [she] has had to bring before the court”.
The case went before Her Honour Judge Moir. She clearly considered that things had been allowed to go far enough:
“…this cannot go on. It cannot go on, on the basis that there are continuing returns to court; it cannot go on, on the basis that the stress which is occasioned every month to [the wife] and resulting in court appearances. The Order was made, it was a Consent Order, there was legal representation and the Order must be complied with.”
Accordingly, she made a fourteen day order of imprisonment against the husband. The order was suspended so long as the husband paid the mortgage (he had brought it up to date just prior to the hearing), but the judge warned him that it would be activated if there was any further breach of the consent order.
Hope v Krejci was a committal application by the wife against the husband for breaching an order made back in July 2012, requiring him to transfer to her two cars and a motorbike. There were various complications regarding the ownership, existence and location of the vehicles, but I will not go into those here. Suffice to say that by the time the wife’s committal application was heard in January this year, the husband had failed to transfer them to the wife.
The wife’s application went before Mr Justice Bodey in the High Court. He was satisfied beyond reasonable doubt that the husband was in contempt of court for failing to transfer the vehicles to the wife as required by the order of the court.
The husband’s counsel tried to persuade him not to make a committal order, saying the husband would deposit the sum of £16,000, the value of the vehicles, into an escrow account, pending an appeal to the European Court. However, Mr Justice Bodey was not prepared to agree to this. There was no guarantee that the money would be deposited and if it was not then the wife would just have to bring the matter back to the court again, adding to her costs and stress.
Accordingly, to ensure the money was paid, Mr Justice Bodey made an order committing the husband to prison for two months, suspended so long as the husband pay the sum of £16,000 to the wife’s solicitors by the 15th of March 2014. If the money is paid then the committal order will be discharged, but if it is not paid by that date it will take effect.
I’m not sure that these two judgments add much to our knowledge on the subject of applications for committal to prison for contempt. They do, however, indicate how the courts deal with such applications, as well as hopefully acting as a warning of the possible consequences of failure to comply with court orders.