Family Law - what if an abuser won't cooperate with a court order?

In a financial remedy case involving abuse, the courts could order an abuser to, for example, sell the former matrimonial home. But what if they refuse to comply?

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This question was posed to family law expert Elissa Da Costa-Waldman during The Solicitors Group's live 'Shape the Debate' Q&A on 20th April 2021.

Elissa advises that the appropriate legislation here is Section 39 of the Superior Courts Act 1981.

The section reads:

(1)Where the High Court [or family court] has given or made a judgment or order directing a person to execute any conveyance, contract or other document, or to indorse any negotiable instrument, then, if that person—

(a)neglects or refuses to comply with the judgment or order; or

(b)cannot after reasonable inquiry be found,

[that court] may, on such terms and conditions, if any, as may be just, order that the conveyance, contract or other document shall be executed, or that the negotiable instrument shall be indorsed, by such person as the court may nominate for that purpose.

Although Section 39 refers to the High Court, solicitors facing the wretched experience of having to go to court and get such an order should be aware that County Court judges can also do it. In fact, any judge, on the appropriate application, will sign conveyancing documents if a party is being obstructive. According to Elissa, they are very willing to take this action.

During the debate, Jonathan Walker-Kane also stated that the most difficult scenario to face with these court orders is when an occupant of the matrimonial home is does not want to sell. An unwilling seller in the house can thwart sale, and it can be costly to persuade the court that somebody is an obstructive vendor. The person behaving in a way that obstructs the sale might cause a great deal of problems, perhaps even going so far as to damage the house, before a judge is convinced that they need to intervene. This conduct can even come from someone who is not the official owner of the property.

The way Elissa had recently been able to avoid such a scenario recently was to pre-emptively have the opposing party sign undertakings that ensured they would not obstruct the sale, they would keep the property in good order, and leave it in a clean condition upon completion. It was the opposing party's solicitor who advised this person to sign the undertakings. This person would then be in breach if they did anything that would be considered obstructive of the sale.

You can watch the recording of the full Q&A here.

Economic abuse in financial remedy cases was covered in great detail as part of LAW2021 Online: Family Law spring edition, a virtual learning event by The Solicitors Group. This session is now available as a single-hour webinar here.

New updates about domestic abuse with child proceedings - learn about this on our new course here.

For the full offering of Family Law courses offered by The Solicitors Group, click here.

Please note: this article is provided for information only and not for the purpose of providing legal advice.


Posted on 06.05.21