Ex-wife deploys judgment summons
Posted: 4th June 2013
The extreme difficulty in enforcing financial orders against divorcees who keep their wealth and themselves outside the jurisdiction of the English courts has been starkly demonstrated by a case in which a woman was left in desperate financial straits due to her ex-husband’s failure to honour their £5.7 million divorce settlement.
The former couple had enjoyed a lavish lifestyle during their 19-year marriage, living in a central London home valued at £6 million. However, six years after their divorce, the ex-wife was under threat of bankruptcy and was impoverished to the point where her lawyers had agreed to represent her free of charge.
Noting ‘the lamentable history of the wife's endeavours to recover her due’, senior family judge, Lord Justice Thorpe, remarked: "If there is no property within this country, whatever husbands are worth and whatever order you get, can you enforce them? The answer is that you can't really touch them, apart from ensuring that they can never set foot in this jurisdiction without expecting arrest on arrival”.
Following their separation, the couple had agreed to a divorce settlement whereby the ex-wife would receive a lump sum of £5.7 million within six months. However, the money did not materialise and she subsequently agreed to accept a reduced sum of around £1.9 million in full and final settlement of her financial claims.
Although she received the majority of that money following the sale of the former matrimonial home, her ex-husband was in October 2010 ordered to pay her the balance of more than £760,000. That should have been paid by January 2011 however the ex-wife had only received £125,000.
Her lawyers took the highly unusual step of seeking to enforce the order against the ex-husband by way of a judgment summons issued under the terms of the 1898 Debtors Act. However, the case hit a stumbling block when a judge accepted the ex-husband’s plea that his ex-wife could not rely upon evidence that he had given ‘under compulsion’ in the course of ancillary relief proceedings.
The ex-husband pointed out that a respondent to a judgment summons cannot be compelled to give evidence and invoked his ‘right to silence’ under article six of the European Convention on Human Rights.
Allowing the ex-wife’s appeal in part, the Court of Appeal ruled that, in pursuit of the summons, she should be permitted to rely upon voluminous documentary evidence that her ex-husband had produced in the course of the divorce proceedings but the bar on her relying on oral evidence or statements that he had given under compulsion remained.
The court’s decision opened the way for a full hearing of the ex-wife’s judgment summons. Lord Justice Thorpe commented that, with the benefit of hindsight, the procedure employed under the 1898 act had ‘proved cumbersome, protracted, expensive and unproductive’.