Don’t count your money until you have it

Divorce|November 6th 2018

I think the best advice that can be given to anyone involved in contested financial remedy proceedings is: be prepared for the long haul. In particular, do not expect that getting an order will be the end of the matter. It may just be the beginning of your real difficulties.

I remember when I was practising clients who had obtained a financial order were naturally keen to get their money. Often, for example, they were anxious to buy a new home for themselves. However, my advice was always: ignore what the order says – don’t spend the money until it’s in your hands! Just because the court says you should get your money by a certain date does not mean that you actually will. It may be true that if they don’t pay you the money by the due date the other party will be in breach of the order, but that doesn’t help you when it comes to buying that new house.

At this point I get the uneasy feeling that I may have said all of this, or something very similar, previously on this blog. But even if I have I make no apology, as it really can’t be said often enough. Indeed, I recall that one or two of my clients chose to ignore my advice, committing themselves to a purchase before they had the funds, with potentially disastrous consequences.

An on-going example that serves as a warning of just how difficult it can be to enforce a financial order is the notorious (to use His Honour Judge Wildblood’s word) case Hart v Hart. It has been mentioned here several times previously (just do a search for ‘Hart’), and the most recent instalment concerns a hearing in the High Court last month to determine whether there had been (yet another) contempt in connection with the implementation of a financial remedies order.

And that order was made way back in 2015. In fact, the whole timescale of the case confirms what I said about being prepared to ‘be in it for the long haul’. Mrs Hart commenced the divorce proceedings in 2011, the financial remedies order was made in June 2015, and Mrs Hart is still endeavouring to implement it, more than three years later.

The particular provision in the order that has caused the difficulties relates to the transfer of shares in a property company, Drakestown Properties Limited, to Mrs Hart. Back in February this year Mr Hart was found to be in contempt for failing to comply with an undertaking he gave to the court in order to render the transfer of shares effective. The hearing last month related to Mr Hart’s sister, who prior to the order was the sole director of the company, and to another company, Halesowen Estates Limited, which used to manage Drakestown. The issue to be determined by Judge Wildblood was whether Mrs Byrne and Halesowen were in contempt for failing to comply with orders of the court requiring them to produce information and documentation relating to Drakestown, to enable Mrs Hart to run the company effectively.

Now, I’m not going to go into the details of the alleged contempt, as they are specific to this case, and are not necessary for the purpose of this post. All that I need to say is that Judge Wildblood had “no doubt whatsoever” that Mrs Byrne and Halesowen were in contempt. This judgment does not deal with how Mrs Byrne was to be punished for the contempt, but in a subsequent judgment she was committed to prison for three months.

Of course, that doesn’t necessarily help Mrs Hart, who presumably is still unable to properly run the company, as envisaged by the order made back in 2015. Since then she and her legal team have spent an enormous amount of time and effort endeavouring to see that the order is complied with. I suspect that some may have given up in similar circumstances, which may have been the hope of Mr Hart.

The moral is quite clear: don’t give up. It may take much more time and effort than expected (or than it should) to get what you are entitled to, but you must be prepared to be in it for the long haul. And above all, don’t count your money until you have it.

If you do want all the details of the case, you can read the full report of the judgment here.

Author: John Bolch

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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