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Here at Family Law Partners, our specialist divorce solicitors try to facilitate settlement out of court wherever possible. However, without disclosure by both parties, this simply isn’t possible. Similarly, without disclosure, a Judge is unlikely to order a financial settlement, as they would not know whether the settlement properly reflects the assets held between the parties. So, what can be done if one party will not provide financial disclosure despite being ordered by the court to do so? The answer to that in some rare circumstances is to issue committal proceedings to send the party to prison.
Committal proceedings are quasi-criminal in nature. The criminal standard of proof applies as it is for the applicant to prove beyond reasonable doubt:
(a) that the respondent has not done what they were ordered to do; and
(b) that it was within their power to do so.
The lines become blurred when the court considers the purpose in committing the respondent to imprisonment. In criminal proceedings, the purpose of imprisonment focuses on the defendant- looking at retribution, rehabilitation and deterrence. Civil proceedings can often flow from the same offence because civil proceedings focus on compensating the victim. Where financial remedy proceedings have spanned over years with persistent refusal to abide by Court orders, there is likely to be heightened animosity between the parties. It is understandable that the applicant would want to see the respondent punished for dragging matters out. However, the focus of the Court is to get the respondent to comply.
In the recent High Court judgement of Rogan v Rogan  which concerned non-payment of spousal maintenance ordered by the Court, Mr Justice Holman described the general reluctance of judges to commit parties to imprisonment in Family Law proceedings. This is because, where children are involved, this is likely to have a damaging impact on the relationship between the parties and their children, and it will have a damaging impact on the parties? finances, defeating the purpose of committal: enabling the Judge to make an order which allows parties to move on with their lives.
Mr Justice Holman questioned whether the wife in this case really wanted her husband to be summoned to imprisonment. Arguably based on a lack of understanding, she argued that it was her belief that if a suspended order for imprisonment was made, her husband would, in the end produce the money. Her argument was misunderstood because a Judge must consider sentence and suspension separately – they must first be satisfied that the custody threshold is crossed and cannot simply pass a suspended sentence because they decide that it is not. Although it was proved beyond reasonable doubt that the respondent has not paid spousal maintenance as ordered (and that it was within his power to do so) after a period of adjournment, the parties agreed that the question of sanction should be deferred until 18th March 2019. This allows the respondent time to consider his actions, and their consequences.
An order for committal should always be a last resort because it is infringing upon a human right of the respondent. Therefore, the respondent must have adequate notice of the possibility of imprisonment. Not only must an order have been breached, but there must have been a penal notice attached to that order. Usually, in financial matters, non-compliance will be ‘punished’ in the form of costs ordered against the non-complier. However, where the party persistently fails to comply, the court may attach a penal notice to an order, putting the party on notice that non-compliance may result in them being sent to prison. This order must have been personally served on the respondent even if the order has been made by consent, although this requirement may, in some circumstances, be dispensed with.
The Court?s permission must be obtained in order to make a committal application; therefore, the applicant must file and serve an application notice along with supporting evidence. Again, this must be personally served on the respondent. Within 14 days of service, the respondent must file and serve an acknowledgement of service and may also file and serve evidence which they wish to rely on. The Court may consider the application for permission at a hearing, or may do so on paper. If a hearing takes place, the respondent must give 7 days? notice in writing if they are going to attend, along with a written summary of the submissions which they will make. If permission is granted, the Court will make directions moving forward.
The trial itself will be conducted much like a criminal trial, with parties and witnesses giving oral evidence, and being cross-examined. The court may make witness summons if it sees fit. Generally speaking, the committal hearing will be heard in public and, where it has been heard in private and committal has been ordered, the court will make available to the public:
(a) the name of the respondent;
(b) the nature of the contempt; and
(c) the length of period of the committal order.
Where a respondent has been committed to imprisonment, they can apply for discharge by making an application to the governor of the prison, demonstrating that they have purged (complied), or wish to purge. If granted, this may be met with disappointment by the applicant, but it must be remembered that the purpose of committal is to encourage compliance and, keeping the respondent in custody, does not necessarily serve the case well.
Successful committal proceedings can be bitter sweet as they come at great expense to the applicant (although some costs will be recoverable), and it is far more difficult for the respondent to complete disclosure whilst in prison.
In the well-known case of Young v Young (2013), as featured in the BBC documentary ‘Millionaire’s Ex-Wife Club’, the wife commenced her applications in June 2008, but committal was not ordered until January 2013. Because there was potentially a lot of money involved in this case, the wife was willing to hold out and made the most of a litigation funding arrangement but for applicants in many lower value cases, they would simply be ‘spent out’ of pursuing their claim. Even in the Young case, the proceedings went cold between December 2009 and January 2011 because the wife was struggling to fund the litigation.
So, frustrated by the husband’s refusal to abide by the Courts directions, and due to the case having gone on for so long, the Judge held that both the husband’s admission to hospital and lack of legal representation at this stage were not adequate excuses as he should have acted earlier. The husband was therefore sentenced to six months’ imprisonment with three months to be spent in custody.
One thing which must be noted is that committal proceedings are not necessarily always the answer to the applicant’s problems. In the Young case, the husband was more willing to go to prison than to disclose his assets and continued to refuse to disclose after his release.
In the end, the Judge effectively had to take a ‘stab in the dark’, erring on the side of caution in the applicant’s favour in making a final order as there was no other option. The husband in this instance did not adhere to the order as he passed away without disclosure having ever taken place. Of course, that’s not to say what is owed under the terms of the order can’t be enforced against the deceased’s estate.
Even in the Young case, Mr Justice Moore held that he would be very sympathetic to any application to purge his contempt but indicated that release from imprisonment would only be given after he had purged not so that he could purge, despite it being more difficult for him to do in prison, because the court cannot go on giving further opportunities indefinitely.
In conclusion, the courts are right to treat committal proceedings as a last resort- they can be expensive, time consuming, and in the end offer no guarantees. However, they can also be an effective measure to ensure disclosure. where a party simply refuses to disclose.
There is a duty of full and frank disclosure within financial remedy proceedings arising as a result of a divorce. If you are thinking of trying to avoid disclosure, think again. There are serious consequences, you could go to prison. Get some legal advice sooner rather than later. Likewise, if the spouse you are separating from is refusing to disclose financial information seek legal advice so you can make an informed decision and weigh up the options available to progress matters.