Catch Me If You Can
It was Christian Slater who said, “Good judgement comes from experience. Sometimes, experience comes from bad judgement”.
But what if your experience is that your Ex does not want to pay? What if your Ex still lives the “champagne lifestyle” and yet is unwilling to pay in accordance with the Court’s order? You know your Ex has enough funds to pay the debts owed to you, but they complain that they have no cash to meet their obligations. What do you do? An honest man has nothing to fear and you should try not to be afraid of anything. So what’s the last resort?
Judgement Summons
One very last resort in family cases is a Judgement Summons. This is an application for a committal order. However, these committal orders “are remedies of last resort; in family cases they should be the very last resort”, but sometimes the last resort can be the first prudent step taken by you.
So what is so special about the Judgement Summons proceedings?
The 5 golden rules
- Ask yourself the Question as the Applicant: Have you established, to the criminal standard, that the debtor either (a) has or has had since the date of the order / judgement the means to pay the sum due, and (b) has refused or neglected to pay the same (Debtors Act 1869 s5).
- Because the Debtor’s liberty is at stake, don’t breach the procedural requirements of FPR 2010 rr 33.9 to 33.18.
- Remember that statements under compulsion in enforcement proceedings are not admissible (but may subsequently be admissible – the Mohan principle).
- Also importantly for the Creditor, you can’t be compelled to give evidence (FPR 2010 r33.14.2).
- Consider whether to make an alternative application to the Court for other orders under FPR 2010 r4.3 , like a charging order – see Bhura v Bhura.
Recent notable Judgement Summons cases
- Migliaccio v Migliaccio (Rev 2) [2016] EWHC 1055 (Fam) (26 April 2016)
And for the Family Court in Hong Kong see:
Contact Us
For more details on this or any other family law matter, please do not hesitate to contact James or Frank. Paradigm Family Law offers a free initial consultation and our fixed fee solutions cover financial proceedings from start to finish. You can call us on 0845 6020422 or email us to [email protected]. You can also follow us on twitter and LinkedIn and Facebook for the latest news and views on family law.
