enforcement Archives - James Thornton Family Law

7 February 2025

When One Party Won’t Cooperate: Lessons from WZ v HZ [2024] EWFC 407 (B)

Few things are as frustrating in family law as a party who simply refuses to comply with court orders—particularly when it involves selling the former matrimonial home (FMH). The case of WZ v HZ [2024] EWFC 407 (B) is a prime example of the legal mechanisms available when one spouse obstructs a court-ordered sale.

This case is also notable for the court’s use of the Thwaite jurisdiction, which allows variations to existing financial remedy orders when circumstances change or a party frustrates their implementation. Below, we explore the key lessons from this case and practical takeaways for family law practitioners.

The Facts: A Sale Stalled by One Party

WZ (the wife) and HZ (the husband) had been locked in financial remedy litigation for years. A final order had been made in 2021, which required the sale of the former matrimonial home to provide the wife with funds to meet her housing needs. The order anticipated that the FMH would be on the market within three months and sold within six months.

However, three years later, the house remained unsold, and the wife continued living there rent-free while the husband paid the mortgage and maintenance. The husband accused the wife of deliberately frustrating the sale by refusing access to estate agents, rejecting reasonable offers, and even removing the ‘For Sale’ sign.

Faced with ongoing delays, mounting legal costs, and financial pressure, the husband returned to court seeking:

An order for possession of the FMH, allowing him to take control of the sale.
A Thwaite variation, arguing that the delay had resulted in a financial windfall for the wife, and the court should adjust the division of proceeds.

The Court’s Approach

Ordering Possession: A Rare but Necessary Step

The court acknowledged that it had tried everything to enforce the sale. Previous orders had given the husband sole conduct of the sale, but the wife’s obstruction had rendered this ineffective.

Citing Derhalli v Derhalli [2021] EWCA Civ 112, the judge confirmed that the court has the power to grant possession under FPR 9.24, which allows the court to enforce orders under Section 24A of the Matrimonial Causes Act 1973. This power enables the court to remove an obstructive party from the home to ensure compliance with a sale order.

🔹 Lesson for practitioners: If a party repeatedly frustrates a sale, a possession order may be the only viable enforcement tool. This case shows that the courts are willing to take robust action when necessary.

Thwaite Jurisdiction: Adjusting Orders to Reflect Reality

The Thwaite jurisdiction, derived from Thwaite v Thwaite [1981] 2 FLR 280, allows courts to vary the terms of an executory order (one that has not yet been implemented) to achieve fairness.

In this case, the court found that:

The wife had benefited unfairly from delaying the sale, as property prices had risen significantly.
The original order assumed a sale in 2021, meaning the husband was now paying much more than intended.
The original division of proceeds was no longer fair, given the wife’s obstruction.

The court ruled that the increase in the sale price should not benefit the wife entirely. Instead, a portion of the additional equity would go toward covering the husband’s legal fees and outstanding maintenance obligations.

🔹 Lesson for practitioners: The Thwaite jurisdiction is a powerful tool in financial remedy cases where one party frustrates implementation. It ensures that delays do not unfairly enrich the obstructive party.

Key Takeaways for Family Lawyers

Enforcing Sales: Courts Will Step In

If a party refuses to cooperate, courts can grant possession orders to remove them from the property.
Even where a party is living in the FMH, they cannot indefinitely obstruct a sale.

Thwaite Variations: A Safety Net for Changing Circumstances

Orders that remain executory can be adjusted if circumstances change.
Deliberate obstruction can result in a financial penalty, ensuring the obstructive party does not benefit from their own misconduct.

Acting Early to Avoid Costly Litigation

This case took three years to return to court, during which time both parties incurred significant legal costs.
Had the husband applied earlier for enforcement measures, he may have avoided much of the financial and emotional toll.

Final Thoughts: The Cost of Non-Compliance

WZ v HZ [2024] highlights the perils of failing to comply with financial remedy orders. For parties tempted to frustrate court-ordered sales, the judgment sends a clear warning: the court has the power to act, and it will.

For practitioners, this case reinforces the importance of early intervention. If one party is blocking a sale, don’t wait—seek enforcement, possession orders, or Thwaite adjustments before delays spiral into costly litigation.

Published by James Thornton in Blog

Tags: case law, enforcement, fmh, sale of property, thwaite, thwaite jurisdiction

12 November 2024

Charging Orders in Family Law: Insights from GH v H [2024]

The recent case GH v H [2024] EWHC 2869 (Fam) highlights the enforcement of financial remedies via charging orders in family proceedings. Here, the High Court made a final charging order on a husband’s property to enforce unpaid financial orders owed to his ex-wife and child. This case underlines a significant enforcement route—charging orders—which allows a party to secure a financial remedy against a debtor’s property, providing creditors with a lien on that property.

Key Issues and Legal Points

Unpaid Financial Orders: In GH v H, the husband owed substantial sums following a financial remedy order and failed to make payments despite multiple court orders. After unsuccessful attempts at securing compliance, the court granted a charging order, allowing the wife to secure her owed funds directly against the husband’s assets.
Charging Orders Explained: Charging orders are typically used to secure unpaid sums against a debtor’s real property, like a home. This measure enforces payment by ensuring that, if the property is sold, the proceeds satisfy the debt. In family law, charging orders can also help secure future payments due under financial orders, benefiting the party entitled to the funds. Charging orders thus serve as a deterrent for debtors who might otherwise evade payment.
Children as Beneficiaries of Orders: Notably, in GH v H, some unpaid sums were due directly to the parties’ child. The court’s interpretation allowed these sums to be included in the charging order, affirming that sums due to third-party beneficiaries, such as children, can still be secured.
Interest on Unpaid Periodical Payments: The judgment clarified that interest accrues on unpaid periodic payments, such as maintenance, when ordered in the High Court. The interest, accruing at 8% per annum, reinforces the financial burden of non-compliance and incentivises timely payment.
Cost Implications and Fixed Costs: The case raises essential questions about costs in enforcement applications. Family law proceedings traditionally follow a fixed-cost regime, capping fees for enforcement applications. However, given the repeated attempts and non-cooperation of the husband in GH v H, the court exercised its discretion to order higher costs, a reminder that deliberate non-compliance may incur increased financial penalties.

Key Highlights for Practitioners

GH v H offers crucial insights into enforcing family law orders through charging orders, emphasising that courts will utilise every available enforcement method to secure compliance. Practitioners should note the court’s readiness to enforce orders robustly, especially for clients facing significant arrears in financial remedies, and the importance of considering charging orders early in complex cases.

Practical Implications

Charging orders provide a viable option for practitioners when dealing with non-compliant parties. As illustrated in GH v H, the court’s discretionary powers, particularly regarding interest and cost orders, can be substantial. For clients, this serves as both a caution and assurance—non-compliance with financial orders incurs serious consequences, while compliance is rewarded with court-backed enforcement mechanisms to ensure fairness and security in family financial matters.

Published by James Thornton in Blog

Tags: case law, charging orders, enforcement, gh v h 2024

7 November 2024

Persistent Non-Compliance in Divorce – Truth, Lies, and Rolexes: Key Lessons from Williams v Williams [2024] EWFC 275

In Williams v Williams [2024] EWFC 275, the court contended with a husband who repeatedly flouted court orders and gave unreliable evidence, taking non-compliance to a new level with statements deemed “demonstrably untrue.” Andrew Williams’s actions, which included concealing assets and lying about possessions, provide a fascinating study in the consequences of non-disclosure in family law.

Case Background

Abigail Williams sought a fair financial remedy following her separation from Andrew, whose behaviour quickly raised red flags. Despite court orders, he failed to provide reliable information, refusing full disclosure of his assets, which spanned an array of private companies and overseas investments. Throughout the proceedings, he repeatedly breached disclosure obligations and failed to attend hearings, showing a disregard for both his spouse and the judicial process.

Courtroom Drama: The Rolex “Wind-Up”

The court’s assessment of Andrew’s honesty reached a peak when he claimed, while testifying, that he was wearing a cheap Casio watch instead of the gold Rolex visible on his wrist. The next day, he admitted this was untrue, calling it a “wind-up.” This episode encapsulated his approach to the proceedings, and Moor J ultimately concluded that Andrew was “entirely dishonest” and had intentionally tried to “pull the wool” over the court’s eyes. Such blatant dishonesty significantly impacted the court’s ruling, reinforcing how detrimental non-compliance and lack of transparency can be in financial remedy cases.

Key Legal Takeaways

The Importance of Full Disclosure:
Under family law, parties are required to make a full and frank disclosure of their financial situations. Andrew’s failure to do so, coupled with his clear dishonesty, led the court to apply sanctions. Practitioners must remind clients that attempts to obscure financial reality, even in jest, will be detrimental to their case.
Contempt of Court and Enforcement Measures:
Andrew’s disregard for court orders led to findings of contempt. The court employed enforcement tools such as freezing orders and debt recovery actions, showcasing its commitment to protecting the integrity of proceedings. For clients and practitioners, this highlights the critical need for adherence to court orders, as failing to do so can lead to severe consequences.
Complex Asset Structures and Valuation:
Andrew’s assets, concealed within complex business structures, made valuations challenging. Practitioners should be aware that complex or hidden assets will prompt the court to take thorough investigative steps, such as ordering forensic accounting, and may lead to adverse inferences if information is incomplete.

Conclusion

Williams v Williams illustrates the dangers of dishonesty and non-compliance in financial remedy cases. Andrew’s behaviour not only affected his credibility but also led to substantial court-imposed penalties, underscoring the court’s intolerance for dishonesty in asset disclosure. Family law practitioners should note the court’s stance, as this case serves as a powerful reminder to clients of the importance of honesty and transparency in financial proceedings.

Published by James Thornton in Blog

Tags: case law, disclosure, enforcement, non compliance, non disclosure, rolex, standish, williams v williams

9 October 2024

Sequestration Orders and the Sale of Property for Legal Costs: Insights from AB v CD [2024] EWHC 2521 (Fam)

In AB v CD [2024] EWHC 2521 (Fam), the High Court tackled a complex and challenging situation involving the enforcement of child arrangement orders across international borders. The case sheds light on how courts use sequestration orders—a powerful legal tool—to enforce compliance and fund essential legal actions, particularly in family law disputes that cross jurisdictions.

Background: The Child Arrangements Dispute

The case centred around a child, EF, who was wrongfully taken abroad by her father, CD, despite a UK court order stating that she should live with her mother, AB. In April 2023, the court ruled that EF would reside with AB. However, during a trip to Florida, CD violated this order by taking EF out of the UK and failing to return her as required. AB was then forced to seek a court order to bring her daughter back, sparking a legal battle that crossed international borders, including the need for legal action in Dubai.

Key Legal Issues at Play

Sequestration Orders and Funding Legal Action:
- AB asked the court to allow the sale of CD’s UK property to fund her legal efforts to enforce the child arrangements order in Dubai. The court explored the history and modern application of sequestration orders, which traditionally compel compliance with court orders but, in this case, were sought to generate funds for international litigation.
Contempt of Court:
- CD was found in contempt for failing to comply with the court order to return EF. He was sentenced to 12 months in prison, suspended for 28 days, giving him the opportunity to return the child and avoid incarceration. As CD failed to comply, he faces arrest and imprisonment should he return to the UK.
Jurisdictional Reach and Modern Enforcement Powers:
- The court discussed how sequestration orders, once primarily aimed at enforcing financial obligations, have evolved under the Family Procedure Rules (FPR) and Civil Procedure Rules (CPR) to address more complex family law enforcement issues, including the confiscation of assets to fund necessary litigation arising from non-compliance.
Procedural Considerations for Contempt and Confiscation:
- The court highlighted the importance of adhering to strict procedural rules when pursuing contempt actions. Proper notification of the person in contempt is crucial, and confiscation orders can only follow a formal finding of contempt. The court emphasised that without a clear procedural pathway, such as fresh contempt proceedings, AB’s request to sell CD’s property could not proceed.

Court’s Decision: Finding a Path Forward

The court acknowledged the merit in AB’s application but ultimately concluded that under the current procedural framework, it lacked the authority to grant a sequestration order for the sale of CD’s property. The judge suggested that AB could initiate fresh contempt proceedings, which would enable the court to issue a confiscation order and allow the sale of the property to fund her legal costs.

Past cases like Richardson v Richardson and Mir v Mir were referenced to illustrate similar legal issues regarding the enforcement of court orders through sequestration.

Implications and Next Steps

This case highlights the difficulties involved in enforcing international child arrangements orders and the creative use of sequestration to meet these challenges. The court’s decision offers AB a potential legal pathway by initiating fresh contempt proceedings, which could lead to a confiscation order and allow her to fund her legal fight in Dubai to secure EF’s return.

Key Takeaways for Family Law Practitioners:

Sequestration as a Versatile Enforcement Tool: While sequestration orders are traditionally used to enforce financial obligations, this case demonstrates their potential use in funding litigation when court orders are disregarded.
Strict Adherence to Contempt Procedures: Practitioners must ensure that all procedural requirements are met in contempt applications, including providing proper notice to the person in contempt. Without these steps, applications risk being dismissed.
Evolving Jurisdictional Powers: Courts now have broader powers under the FPR and CPR to confiscate assets in family law disputes, reflecting a modern approach to enforcing compliance with court orders, especially in international cases.
Cross-Border Enforcement: The case underscores the complexity of enforcing child arrangements orders across jurisdictions and the importance of innovative legal strategies to secure compliance in foreign countries.
Fresh Legal Pathways for Enforcement: The court’s guidance on pursuing fresh contempt proceedings provides a clear roadmap for future legal actions in cases where sequestration orders are sought to fund international litigation.

Conclusion

The decision in AB v CD [2024] EWHC 2521 (Fam) highlights the court's adaptability in using traditional legal remedies, like sequestration, in new and creative ways to address the growing challenges of international family law disputes. The case provides valuable insights into the evolving nature of enforcement mechanisms and the importance of procedural precision in contempt and confiscation applications. For family law practitioners, understanding these evolving tools is critical to securing compliance in increasingly complex international cases.

Published by James Thornton in Blog

Tags: case law, child arrangements, contempt, enforcement, international, sale of property, sequestration

When One Party Won’t Cooperate: Lessons from WZ v HZ [2024] EWFC 407 (B)

Charging Orders in Family Law: Insights from GH v H [2024]

Persistent Non-Compliance in Divorce – Truth, Lies, and Rolexes: Key Lessons from Williams v Williams [2024] EWFC 275

Sequestration Orders and the Sale of Property for Legal Costs: Insights from AB v CD [2024] EWHC 2521 (Fam)

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