The consequences of failing to cooperate with the court

Family Law|October 31st 2016

Whether we like it or not, we all depend upon the rule of law. Without it, a civilised society simply cannot function; there would, in short, be anarchy.

Now those are some pretty strong words to introduce a post about a husband who didn’t want to cooperate with a financial remedies claim issued by his wife, but ultimately this seemingly trivial act of defiance is a challenge to the rule of law. Society decides upon the rules, and every member of society must comply. Here, society has decided that when a marriage comes to an end each spouse is entitled to a financial settlement, and if the settlement cannot be agreed between them then either spouse may apply for the matter to be decided by a court. Obviously, without such a rule many spouses would be unable to obtain a settlement: an outcome that society is not prepared to tolerate.

Now, all family lawyers have come across opposing parties who, usually without legal representation (and therefore advice) decide that the rules are not for them. We see it in various areas of family law, but especially when money is involved. They don’t want their former spouse or partner to have a penny of ‘their’ money, and they think that if they don’t cooperate with the court then they will prevent them from getting it. Sadly for them, they are mistaken: failing to cooperate with the court does not make things better. As we will see, it makes them considerably worse.

Of course it would be a pretty feeble legal system if such a simple expedient as not cooperating could frustrate the will of the court. Accordingly, the court has certain tools at its disposal to ensure compliance, the most draconian of which is committal to prison.

And that was the tool that the wife asked the court to use in the recent case Parkinson v Daley. There is absolutely nothing new or unusual about this case – it is only reported because of its subject, not because it has anything new to say.

The particular scenario in Parkinson v Daley is especially common, as any family lawyer will be able to attest. The wife issued her financial remedies application, seeking a financial settlement consequent upon her divorce. Now, obviously the court cannot decide what would be an appropriate settlement without full details of the case, including details of the means of the parties. Accordingly, the rules provide that, once a financial remedies application has been issued, each party must file with the court a statement setting out details of their finances, known as a ‘Form E’. The Form E should be filed at least 35 days before the first hearing of the wife’s application, known simply as the ‘First Appointment’. Now the husband would have been informed of this by the court, when he was served with the wife’s application. However, he appears to have decided that the rules were not for him, and so ignored them.

The First Appointment took place on 19 May last. The husband, unsurprisingly, failed to attend. The court ordered him to file a completed Form E by 4pm on 8 July. Despite the fact that the order was endorsed with a penal notice warning him of the possible consequences of not complying with the order, the husband failed to file his Form E.

The matter went back to the court on 9 August and again the husband failed to attend. The wife therefore applied for him to be committed to prison for contempt of court, in failing to obey the order of the court. The application went before the court on 19 October. Yet again the husband failed to attend.

What happened next was, of course, inevitable. The court found the husband to be in contempt of court. He was therefore committed to prison for three months, suspended for fourteen days to give him one last chance to comply with the order, failing which the wife can apply for him to be committed to prison.

So, the message should be clear: you can’t just ignore court orders, and if you do so there will be consequences.

Long-time readers of this blog may possibly recall that I wrote a very similar post to this three years ago, in which I mentioned a warning given by the President of the Family Division of the consequences of failing to obey court orders generally, and an order to file a Form E specifically. I have no regrets about making the same point again, as clearly that warning is not being heeded.

The judgment in Parkinson v Daley – all eight paragraphs of it – can be found here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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Comments(9)

  1. D says:

    .. and enter marriage knowing on divorce you are potentially liable to provide an (ongoing) financial settlement. That’s the point you need to decide whether you’re happy with it. At this point you’re well past that point.

  2. JamesB says:

    This post does not make sense. John Bolch seems to have gone up the mountain and come down with his stone of commandments. Laws are made to be broken, like contact orders especially. His approach is one seen at the Battle of Orgreave and Hillsborough and is anachronistic. This country thrives on people breaking the status quo.

  3. JamesB says:

    I fell for the shock jock tactic again.

    Its like the expensive barrister claiming poverty for a spouse, or a women in breach of a contact order a enforcing financial order.

    A lawyer says, obey the law, well if everyone obeyed the law we wouldn’t need lawyers, this is a circular argument which serves and seeks to employ more lawyers. Best response is to ignore it, or as per D’s comments. Or to make the comment that it is strange that some orders (example contact orders) are unenforceable where others (example financial orders) are enforceable. Strange how Blair said a second UN resolution was a necessary prerequisite to invade Iraq then did it anyway.

    Seems to me like lawyers are ripping people off and people are getting wise to it and lawyers need to change the rules, not hide behind the nonsense that society writes the law, the establishment write the law and changes it when it has to and change is overdue for the 1973 MCA.

  4. JamesB says:

    If what he said that natural law was self evident and our laws then courts wouldn’t have expensive barristers winning dodgy cases for people and people wouldn’t pay for a result as they do and lawyers wouldn’t make as much money as they do. People can and do buy results day in day out in court, people do throw their weight around and get away with it day in day out. Pushing the establishment line these days as John does is like eating a hamburger at a meat is murder rally.

    Of course we need rule of law and order, but I do wish society did make as good law as John suggests then we wouldn’t need lawyers. A circular argument and you have to pay to play and I don’t want to.

  5. Andy says:

    Having seen the debacle that is currently being played out in courts is shocking..
    What I mean is, the twist and turns of the legal side whilst following a basic guide to the final settlement..I say final because it never is…
    If any One Has been through divorce it ain’t cheap and of course the lies,hidden assets and finances that are tried to loose because of a E form and disclosure…in reality its just a game, in the end the you seek a final decision from a independent legal authority namely a judge so all the twist and turns with countless lies are really a joke with a costly price.
    I do have support with the refusal of finances but in today’s society it’s seems,mine is mine and not yours…
    But the courts dish out generous allowances..
    No wonder fathers and others get angry.
    If you dig journalism and carry on what will the courts do..Not a lot even jail but that will not sort this out…
    It’s like you get done for speeding one,two,three times and 12 points dished out..after disqualificationyou hop back into a car and keep driving keep getting stopped then the law does not know what to do with you so in reality do you just not disclose or disclose and loose all…choice is yours…

  6. Malcolm Lochhead says:

    And yet my impression is that penalties are rarely imposed on mums who fail to comply with Child Arrangement Orders, even though they are flouted quite routinely. Is this not the case?

  7. Spinner says:

    There are plenty of ways to obstruct the system, flatly not cooperating is not one of them, You need to cooperate just enough to make them have reasonable doubt as to whether you are copperating or not, this approach will go a long way.

  8. Ronnie says:

    I see that back on Nov. 11th 2013, John Bolch wrote: “Often [the Form E] is incomplete, sometimes with no more than a sulky token effort at filling it in. Hopefully, the courts will also crack down on this sort of behaviour.” Well, palpably the court did NOT do so in my case — to my extreme detriment, and ire. Despite all her earnings, my scamming “wife” declared an incredibly tiny amount in savings — and neither the court, nor my useless lawyer, ever even so much as queried it! It is no wonder then that, as I become more “sophisticated” (jaded) from the machinations of the legal system, which presented my ex-wife with a “golden farewell”, and the time comes to cough, I, somewhat belatedly, start to dig my heels in.

    I am sure even such an esteemed lawyer as John Bolch must agree that Britain, and many other democratic countries, have a long and respected tradition of “civil disobedience”. People who simply do not agree with the way the law is, PROTEST — and sometimes, eventually, the law IS changed. The only difference here is that divorce laws do not effect enough (men, normally) AT THE SAME TIME. (And we don’t have any equivalent of a “feminist” movement, to get others behind us.) Therefore, it takes a long time before there is amassed a “groundswell” of support. In the meantime, we are forced to make our personal protests. There is probably far more support for aggrieved FATHERS than simply those who married, and were eventually ordered to hand over a sizable chunk of their assets to their ex-wives.

    Whether this is because the judgments against fathers seem even more egregious than simply being forced to cough up a whole bunch of dosh to support a scammer wife, who has learned (very well) how to play the system to her advantage, is unclear. Because a scammer (such as I was once married to) is, by definition, a CROOK — and the law MUST NOT be used to support crooks. Although currently, it IS.

    Dare I say “unwittingly”, though? I don’t believe so — lawyers certainly know this, so the justice system knows it — and yet, so far, nothing is being done about the increasing numbers of women, avowed scammers (not the same as simple “gold diggers”), who MARRY JUST SO THEY CAN DIVORCE for a fat settlement.

    And, as long as we just sit on our hands, and meekly accept the INjustice of the system, then certainly NOTHING will change. It clearly is RIGHT to resist — and WRONG to meekly accept unjust decisions. It will take that much longer to effect a change in the law, that way.

    So, John, thank you for pointing out the “perils” of non-compliance with a court order. But I submit that the perils of going against your own conscience, and allowing injustice to continue on and on, is far, far worse.

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