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Ask Clare Your Own Question
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34886
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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Clare, my ex husband, who lives in Brazil, has stopped

Customer Question

Hi Clare, my ex husband, who lives in Brazil, has stopped paying the mortgage payments which is an undertaking that was agreed in the Consent Order. I am going to try to follow your advice last week and get a Judgement summons when he is next in the U.K. before Christmas. However the legal process will obviously not be sorted until next year I imagine, if it goes in my favour. We have a joint mortgage and his name is ***** ***** deeds and there is a letter of trust that I am the owner of the house. This had to be done as Halifax wouldn't give him a mortgage if he wasn't on the deeds. Shall I take on the mortgage payments on his behalf so that we don't get into arrears and keep a note of everything I've spent on the mortgage or would I be jeopardising the legal process? What I'd like to achieve, is for him to use his large pension pot to pay off the mortgage in full plus all interest and charges etc. His pension is with Killick & Co & he is 59 years old. What do you think?
Submitted: 1 year ago.
Category: Family Law
Expert:  Clare replied 1 year ago.

Hello again.

How much are the arrears at the moment?

Customer: replied 1 year ago.
Approximately £3,000.
Expert:  Clare replied 1 year ago.

Are repossession proceedings imminent?

Customer: replied 1 year ago.
No not at all, but I don't want to ruin my credit rating too greatly and I could pay at a push.
Expert:  Clare replied 1 year ago.

In that case I would suggest that you pay the mortgage and keep a record - it will not change the position on the arrears due to you

Customer: replied 1 year ago.
Thank you. Do you have any idea which form I need to achieve my goal of Geoffrey using his pension to pay off the mortgage? He says he is not earning much nowadays, which I (sort of) can believe, which is why he's not paying maintenance or mortgage.
Expert:  Clare replied 1 year ago.

As a starting point be patient - facing prison your ex may well decide to negotiate with you so wait until you see the outcome of that.

Alternatively he himself may apply to vary the order - which will open the matter for your to apply to vary it yourself.

All of these will be easier than applying to vary the Order until the next time arrears accrue

Customer: replied 1 year ago.
My ex has totally ignored every letter I've ever sent him, so I'm not holding my breath. He's a slippery character and took 3 years to fill in the Form E for the divorce and then didn't sign it, and I know he wasn't telling the whole truth. He's avoided varying the Order, I believe, for the same reason. I don't feel I have any other route to go other than a judgement summons, but I don't know which one to do. He won't do anything unless forced, he thinks he's safe because he's in Brazil.
Expert:  Clare replied 1 year ago.

If you have decided on a Judgement Summons then try that first

Customer: replied 1 year ago.
Do you think I have a chance of reaching my goal? Have you ever heard of a judge agreeing to using someone's pension pot to pay off the mortgage?
Expert:  Clare replied 1 year ago.

It is possible if he continues to pay erratically and accrues arrears

Customer: replied 1 year ago.
Thank you. Do you happen to know what Form I need to use?
Expert:  Clare replied 1 year ago.

That will be a Form A - but wait until the enforcement has failed first

Customer: replied 1 year ago.
I don't understand what you mean by Enforcement?
Expert:  Clare replied 1 year ago.

The Judgement summons

Customer: replied 1 year ago.
1. Claire you have said that I should use a judgement summons form D63. Can you please confirm that to apply for a Judgement summons to be issued by the court I need to complete and submit form D62. According to the Department of Justice web site Procedure Rules Practice Direction 5A – Forms refers to form D62 under Part 33 Enforcement. I think this is the application form needed for a D63 Judgement Summons.2. On Form D62 there is a check box that has to be checked that states;“I am aware that if I do not prove to the satisfaction of the Court at the hearing that the debtor has, or has had since the date of the order, the means to pay the sum in respect of which he has made default and that he has refused or neglected, or refuses or neglects, to pay it, I may have to pay the costs of the judgment summons.” What is the cost of the judgement summons. Presumably it is not talking about the £110 fee for the D62 application (as per Section 9.9 of the Statutory Guidance for Court Fees). Is it referring to his costs if he brings legal representation or the cost of the court for the hearing? Would be to understand any possible exposure to cost here.I understand this is to do with his human rights in that he cannot be asked to incriminate himself. Will the existence of his Killick and Co pension and his (presumed) pension pots, which I presume to still be in existence, be sufficient evidence that he has the means to pay because I have absolutely no idea as to what means he has or has not as we have been separated for 6 years and I have no knowledge of his income since the issue of the consent order in May 2013. Also what about the fact that he has bought air tickets for our children and paid for them during their visits to Brazil to see him and one child is due to fly later this year which he is funding. He also came over to the UK in the summer during the Olympics for a 3 week period again to visit the children and is of course coming in December. This does not seem like a man who has no means at all. As to the extent of his mean this is open to debate obviously. How high will the bar be for me demonstrate he has some means.3. Turning to the issue of the judgement summons itself. We need him to be in the UK for the hearing. Under the same section of the Justice web site Rule 33.3 explains how to apply for a Judgement Summons. Rule 33.10 stipulates where the Application must be made and seems straight forward. Rule 33.11 covers how a judgement order can be served, item (3) of which allows serving on the debtor (a) personally, (b) by the court sending by first class post. Item (4) puts a requirement on the judgement creditor to file with the court a certificate of posting which does not make sense to me as in this case the court would have sent the judgement summons not the judgement creditor. The advice I need here is what is the best way to serve my ex husband. It we use his home address in Brazil he may well cancel his trip to the UK. It is clearly impracticable for me to serve the summons personally. So should we use the UK address where we think he will be staying, but then there is the issue that the summons has to served at least 14 days before the set hearing date of the summons and if he is only in the UK for 2 weeks this makes it difficult. Alternatively as long as it is addressed to him and it arrives at the address in UK more than 14 days before the hearing would this count as being served in accordance with the rules or does he actually have to read the summons 14 days before the hearing date?
Expert:  Clare replied 1 year ago.

My apologies - it is a D62 not a D63 that you need first

You have sufficient evidence (the plane tickets) to show that the non payment is a choice and not a necessity - that is all that you need

You wait until his arrival in the Uk and arrange for him to be served personally.

You will need to explain to the court the difficulty that you face is service and ask for the time for service to be abridged (shortened) to seven days

Customer: replied 1 year ago.
Thank you for this.
In circumstances whereby the Judgement Summons is posted by first class post by the Court, if it arrives at his sister's UK address, where I believe he will be staying, not less than 14 days before the hearing, and if he doesn't open it, is that still classified as having been served?
The original Consent Order was issued at Canterbury Court, the serving address we are proposing is in Warwick, to which court should I submit the application form D62? Can I do it in Canterbury or does it have to be the District Centre for Family Courts or does it have to be near Warwick?
Expert:  Clare replied 1 year ago.

You submit it to the Court that issued the Order.

You will need to

1. Ask the Court for permission to "abridge the time for service" - making it shorter

2. arrange for the paperwork to be personally served on him as soon as he is in the UK