As I have said many times, both here and to my own clients when I was practising, getting a final order is often only half of the battle when it comes to sorting out financial arrangements following divorce. The other half comes in actually enforcing that order.
Despite the importance of enforcement, we don’t see an awful lot of cases about it reported. However, we did get at least a glimpse of it in the case ET v ST, which was decided by Mr Justice Mostyn in April last year, but which only recently appeared on the Bailii website. The case is also of interest because of the wife’s attempts to thwart the enforcement action.
The case revolved around the husband’s attempts to recover a painting by the artist Caziel. The painting was amongst the contents of a property that it had been agreed should be retained by the husband. That agreement was incorporated into a consent order in July 2011.
For the benefit of those, including myself, who are not art experts Caziel was, according to Wikipedia, “a Polish artist who lived and worked in Paris during the inter-war period and who worked alongside a number of important figures of the School of Paris, including Pablo Picasso”. Despite that illustrious connection, I don’t think his paintings are especially valuable – a quick internet search reveals them being sold for anything between a few hundred pounds and five thousand pounds. We are not told how much the painting in this case is worth, although obviously it could also have had sentimental value to the husband.
By October 2017 the painting had not been delivered up to the husband by the wife, and the husband therefore commenced enforcement proceedings.
On three occasions the wife had told the court that she had not seen the painting for some years, and implied that the husband had taken it. Two of those statements were made under oath from the witness box, and one in a written witness statement endorsed with a statement of truth. However, in another witness statement in January 2018 the wife admitted that her earlier statements had been untrue – she did know the whereabouts of the painting.
Following this, the painting was recovered by the husband, although not before the husband had issued an application for the wife to be committed to prison for breach of the order.
There still, however, remained the issue of the husband’s costs, both of the enforcement action and of the committal proceedings. In addition to this, the husband sought permission from the court to proceed with committal proceedings against the wife in respect of both her false witness statement and her lies under oath. These issues fell to Mr Justice Mostyn to determine.
Dealing with the committal application first, Mr Justice Mostyn refused permission for the husband to proceed. The reason for this is that he considered that the husband had a better avenue available to him: criminal proceedings against the wife for perjury, which carry with them a maximum prison sentence of seven years. We are not told whether or not the husband chose to take this course.
As to the issue of costs, Mr Justice Mostyn felt it unarguable that the husband should recover his costs relating to the enforcement action. As to the committal application, Mr Justice Mostyn felt that the husband had pursued this “in a very single-minded way”, despite the fact that he had achieved his primary aim, which was to recover the painting. Accordingly, Mr Justice Mostyn only ordered the wife to pay 50% of the husband’s costs in relation to the committal application.
An interesting little case, illustrating quite typical enforcement issues: one party having to go back to the court to recover an asset that should have been delivered to them, and the other party lying to the court in an attempt to thwart them. The case is also perhaps an illustration of the perils of being over-zealous when it comes to enforcement: one can fully understand the husband’s annoyance at the wife’s lies, and his determination that she should not ‘get away’ with them, but in the end his actions cost him money that he was not able to recover.
You can read the full judgment here.