Avoiding divorce obligations

Divorce | 8 Dec 2015 0

These days more than ever parties to family litigation are encouraged to settle their disputes by agreement. However, it is not enough simply to agree a matter: there is also the requirement to honour the agreement.

I’m not talking here about cases where, through no fault of their own, a party is unable to honour an agreement entered into in good faith. I’m talking about those cases where a party wilfully avoids their obligations under an agreement (and indeed may have entered into the agreement with no intention of honouring it).

An example of this sort of scenario occurred in the Northern Ireland High Court case Whiteside v Whiteside, which concerned a financial settlement following divorce. I don’t know what the husband’s intentions were at the time, but in June 2010 he and the wife entered into a consent order agreeing the division of their assets, as follows:

“The respondent [i.e. the husband] had already paid £65,000 to the petitioner who had transferred the former matrimonial home into his sole name. He was to pay her a further lump sum of £105,000 upon the sale of either or both of that home or the public house which they owned together. Both were to be sold forthwith [by the husband]. In addition the respondent was to pay child maintenance of £80 per week in respect of each of their two children. Furthermore, until the lump sum of £105,000 was paid the respondent was to pay £610 per month to his ex-wife by way of spousal maintenance in addition to the child maintenance. The payment of the £105,000 would bring an end to the monthly maintenance to the petitioner.”

To date, neither the home nor the public house has been sold, and so the wife has not received her £105,000 lump sum. Further to this, the husband has not paid the spousal maintenance since December 2012. As a result of not receiving either the lump sum or the maintenance, the wife has lost the home which she purchased after the separation for herself and the couple’s two daughters.

In July 2014 the wife issued a judgment summons for unpaid spousal maintenance of £10,980, seeking the husband’s committal to prison. She claimed, amongst other things, that the husband had no intention of selling the house. The husband responded with a cross-application to reduce the spousal maintenance, claiming that he had been unable to raise the money “to buy out the petitioner’s claims” because there were no offers on either the home or the public house.

The matter went before Mr Justice O’Hara, who was satisfied that the husband had done little or nothing to try to achieve the sale of the home or the public house. He had done nothing to ‘present’ the home for sale and had marketed the public house at an unrealistic asking price, considerably higher than the estate agent had advised. Further to this, he found that the husband had lied about his income, although he did accept that the spousal maintenance should be reduced, to £250 per month.

As for the committal application, the wife recognised that this would not achieve the payment and that it would be very hard for their two daughters to have their father in jail. Nevertheless, said Judge O’Hara, it was not just or acceptable for the husband to escape his dishonesty. He was satisfied that the husband had deliberately failed to pay the maintenance, even when he had the means to do so. Accordingly, he imposed upon him a six week prison sentence, suspended for three months.

Judge O’Hara concluded by emphasising that the husband’s obligation to pay both the lump sum and the maintenance remained, and with the following words:

“Mr Whiteside has behaved inexcusably badly towards his wife and, as a result, towards his children. It is long past time that he stopped avoiding the obligations which are part and parcel of the agreement of June 2010.”

The full report of Whiteside v Whiteside can be read here.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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