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ukfamilysolicitor
ukfamilysolicitor, Solicitor
Category: Law
Satisfied Customers: 757
Experience:  Qualified Solicitor Currently specialising in Family. Also experienced in Corporate, Employment, Civil Litigation, Debt Recovery
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My partner has a finial consent order re her divorce a scheduled

Resolved Question:

my partner has a finial consent order re her divorce
a scheduled payment date has been missed and although ex husband says will pay has not given a date and has been in position to liquidate assets but has not done so
what are my options
Submitted: 1 year ago.
Category: Law
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Welcome to Just Answer
You are correct in thinking that your partner should seek enforcement.
Please may I ask:
- how much is overdue?
- when should this have been paid?
- what assets is the ex liquidating? What other assets does he have?
Kind Regards
Caroline
Customer: replied 1 year ago.
£100k due 30th September as part of aschedule of payments totalling £350k
he has paid a first payment of £45k in april
he has predominantly property asset in 3 separate companies and the court believe he has undisclosed assts abroad as tranfers exceeding £400k were made abroad in 3 prior years
the consent orger specifically made the payments unconditional even though it was likely property sales would part or completely finance payments
he has not been energetic in making sales even though in earlier exchanges he said would auction properties if sales slow
Customer: replied 1 year ago.
the divorce process has been very protracted aprox 9years and the judge ingram has been very critical of husbands behaviour and disclosure.
I believe judge would be very sympathetic to situation aslthough not sure if we can target a specific judge in whatever action we take
Customer: replied 1 year ago.
the consent order was in march.the delayed schedule of payments was to facitate (his agreed timetable) him being in position o pay on due dates.judge already critical of him taking liquid resources out of company prior to scheduled hearing when he knew or should have known likely quantum of settlement
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Thank you for your response.
I do apologise for my delay in responding to you.
It appears to me as though the order is sufficiently clear in respect if how much the payments are and when they payments fall due.
The ex husband is currently in default of the order by not paying the instalment when it fell due.
Your partner should therefore consider making an application to the court to enforce the order.
There are various options available to you to seek enforcement:
a) Obtaining a charging order over property owned by the paying party, whether this is owned in their sole name or otherwise;
b) Obtaining a third party debt order effectively to seize any money that the paying party has paid or owes to a third party;
c) Obtaining an attachment of earnings order so that the monies due under the order can be deducted from the payer’s salary;
d) Obtaining a warrant of possession/or execution to seize goods or to secure possession of premises; and
e) Issuing a bankruptcy petition against the debtor.
Kind Regards
Caroline
Positive feedback is gratefully received. Your question will not close and I can answer your follow up questions for free.
Customer: replied 1 year ago.
Thank you Caroline
Could I please give you some additional information and seek to clarify what you have already very helpfully said
1. I confirm the consent order is very clear as to the payments and the dates
2. The consent order includes a penal clause which states that a party could be sent to prison if it's proved amongst other things that he has neglected to pay or put yourself in a position not to be able to pay
Within the options that you listed is one of them or is this something else a type of application to demonstrate to the court the ex partners contempt and to ask for an unless order
Is the situation and remedies available made more difficult because the majority of 'disclosed' assets are within corporate structures . As you can appreciate the case did not go to full hearing because of the consent order but my partner's barrister in preparing her case was clearly going to demonstrate the transfer of substantial cash funds abroad which in his disclosures to date had been omitted
These properties have had charges registered against them as provided for in the consent order which read -The respondent agrees that the applicant be permitted to register appropriate restrictions at the land registry which have been done
Is it possible in fact are we obliged to make the application specific to Judge Ingram who presided over the hearings for over three years and made the specific order
Having determined what type of application we should proceed with how do we do this physically ?
What are the correct forms ?
Do we need a lawyer to submit the years but can we do them ourselves
In the event that we require or deem it appropriate to use legal assistance will these costs be awarded against her ex partner as clearly they would not have been necessary how do you admit the terms of the consent order
Many thanks
Customer: replied 1 year ago.
Last sentence to read
Would have not been necessary if he had met the full terms of the consent order
Expert:  ukfamilysolicitor replied 1 year ago.
Hello
Thank you for your response.
My apologies for my delay in responding to you.
I think that your best option for enforcement is to let the court decide. I consider that you should make an Application for
Enforcement by such method of enforcement as the court may
consider appropriate. The Form that you need is:
http://hmctsformfinder.justice.gov.uk/courtfinder/forms/d050k-eng.pdf
I think that the court fee is £255 - but just call the court in advance and check this.
In respect of reserving this to DJ Ingram - the courts do like to keep judicial continuity - although this is not guaranteed. I would recommend that you include a cover letter when making your application to the court asking if the matter can be reserved to that Judge. Its not certain that they will but its worth a try.
In relation to fees for a Solicitor - Under the Family Procedure and Civil Procedure Rules, the general rule on costs in enforcement proceedings is that the court may ‘make any costs orders that it thinks just’. Its not guaranteed but you can certainly argue that you would not have had to bring the proceedings - but for the default - and this is a good argument.
As you have a penal notice attached the court order then you should also make an application for committal proceedings.The Form you need for this is N78. This will certainly make the Respondent think twice as if he doesn't comply (pay up) without good reason then he can be sent to prison.
Kind Regards
Caroline
Please kindly remember to rate positively.
Customer: replied 1 year ago.
Hi Caroline
Many thanks for your detailed response which has been most helpful and I intend to rate you excellent which you have Been and I would look to using your services again if circumstances arise
For completeness sake I just have three little issues for clarity regarding your answers and then I think I'm in a position to proceed
1 can you confirm that the application forms for committal proceedings is N 78 . I wasn't sure whether it was in N79 or even a different set of numbers when I reviewed the Internet for the various forms and I obviously don't want to get this detail incorrect as the ex-partner is fastidious in his awkwardness!
2 you didn't comment on the difficulties, if any ,presented by virtue of most of the properties being held within corporate structures
3 as I indicated to you in my forensic review of the X partners bank statements I identified nearly £500,000 being transferred to offshore accounts and then withdrawn as cash . My partners barrister was going to use this in adding back to the estate value to determine my partners first share . As a full hearing was never established and we never had a complete form E from the ex partner do you think it's likely that the judge would be persuaded to take the missing funds into account when determining the ability of the ex-partner to make payments as well as all the corporate properties that are held in uk corporations over which we have registered restrictions. Also should this be the sort of information we include in the covering letter we send with the application of enforcement to the court
Many many thanks
I wish to send a letter on Monday and hope to get your thoughts before then
I intend to rate you excellent and will refer your services to my colleagues
Expert:  ukfamilysolicitor replied 1 year ago.
Good Morning
Thank you for your response and your kind words.
The form you need is Form N78 for committal. The N79 is completed by the Court staff.
In relation to the properties held under companies - there is no easy answer. The courts do still willing to deal with this in family proceedings if this was done purposely to conceal. This opinion from a barristers chambers will give you an idea of how the courts are dealing with such issues:
http://www.chba.org.uk/for-members/library/overseas-seminars/the-corporate-veil-prest-beyond-part-1
In respect of the ability to pay and his previous concealments - the Judge at the final hearing appeared convinced without the extra information being presented - so much so that he added a penal notice. Include everything you have and also check the last order - if there were any recordings about his concealment then refer to these also.
Kind Regards
Caroline
ukfamilysolicitor, Solicitor
Category: Law
Satisfied Customers: 757
Experience: Qualified Solicitor Currently specialising in Family. Also experienced in Corporate, Employment, Civil Litigation, Debt Recovery
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Customer: replied 1 year ago.
Thank you

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