In an unusual moment of quiet, I stumbled across the article below. It made me think about asking the right question or understanding what someone might actually need advice about is not always obvious.
Also, what ought to be full and final divorce settlements sometimes aren’t, and don’t mean an end to Court proceedings.
Our divorce ruling may have enabled my ex-husband to trash my credit score | Divorce | The Guardian
The person who contacted the newspaper has found themselves in a not uncommon situation. Thankfully, the need to enforce financial orders in the family court is relatively rare but, especially where one party or the other is unhappy with the outcome, difficulties can arise. As the journalist says, this can be agonising, especially when one party hoped everything was resolved. There are sometimes practical, rather than legal, options that might be better, quicker and less expensive.
This Case
In this case, the person is obviously worried about the impact of non-payment of the mortgage by the other party on their credit score. The practical advice they were given by the journalist about contacting credit reference agencies such as Experian is sound advice because, as the person says, the family court has no power to deal with that.
That’s different from what can be done about the other party’s breach of the court order. That’s not what the person asked about, but as the journalist says could lead to enforcement. However, variation is almost impossible and then only in exceptional circumstances.
Financial orders will specify who should pay what and by when. They may also spell out the consequences of not doing so, which can include paying interest on top of any sums due. That sometimes is enough. Unlike other types of family cases, in enforcement cases one party can recover some or all of their costs from the party that’s at fault. That too can be enough of a penalty to encourage someone to behave more reasonably.
Where it’s not, then the family can be asked to assist in several ways. However, none of this is automatic and the court will assume that there aren’t any problems, unless it’s told otherwise.
In this particular case, I’d expect to see within the court order a clause that provides for what is known as an indemnity to this person from the other party in respect of the mortgage payments. If they were able to, they could pay the mortgage themselves and recover it from the other party’s share of the sale proceeds, relying on this indemnity, to try to preserve their credit rating.
In other cases, one party or the other will refuse to sign paperwork to allow a sale or transfer of a property to go ahead. Here, a Judge can be asked to sign papers on their behalf. This can even be anticipated and set out in the original order if, for example, the Court believes that this will happen because one party has behaved badly, perhaps disobeying court orders, before.
There are then a wide range of possible sanctions and penalties, most of which depending on what type of order is being breached. For example, orders for attachment of the party at fault’s earning or charging their property to secure payment are possible, as are proceedings for committal to prison for the breach of orders and contempt of Court.
These aren’t matters that are often straightforward and the person who wrote to the journalist obvious frustration is understandable. It’s always best, therefore, to take advice as soon as possible and to try to ensure that court orders do cover as much as possible, although as the person has unfortunately discovered, it’s not always possible to provide for everything or prevent someone who is intent on behaving badly from doing whatever the consequences for them might be if they do so.
Next steps...
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