Judges must be careful not to encourage hopeless committal proceedings

It's bad enough for promises of life-long devotion and fidelity to be broken; how much worse if promises made in financial orders also prove to be unreliable?

Practice direction 33A of the practice directions supplementing the Family Procedure Rules 2010 (FPR) is concerned with the enforcement of undertakings, but only an undertaking for the payment of money that 'has effect as if it was an order made under part 2 of the Matrimonial Causes Act 1973'. It goes on to provide that such an undertaking may be enforced as if it was an order and FPR part 33 applies accordingly. Paragraph 2.2 sets out the wording of the required endorsement in the order, and 2.3 the form of statement to be signed by the giver of the undertaking saying they understand its terms and the consequences of failure to comply.

So precisely what orders are caught by the new procedure? An undertaking to pay money may not be enforced by committal except as provided in section 5 of the Debtors Act 1869. This required the creditor to prove that the debtor had or had had the money and could have paid, but neglected or refused to do so. Then section 11 of the Administration of Justice Act 1970 limited the remedy still further by providing that the jurisdiction of a county court to commit under section 5 was exercisable only in respect of a High Court or county court maintenance order (defined in schedule 8).

Forged signature

In Graham v Graham [1992] 2 FLR 406, the husband had forged the wife's signature in order to pay the proceeds of sale of the former matrimonial home into an account in his sole name. The court had made a number of orders including one to pay in a sum equivalent to one half of the net proceeds of sale to abide the wife's application for a lump sum, and endorsed a penal notice on it. The husband failed to comply and engage fully in the proceedings and the wife sought a committal order.

The Court of Appeal held that the order to bring the sum of money into court as security against the final determination of an application in ancillary relief proceedings for a lump sum order was an order for the payment of maintenance within section 11 of the 1970 Act and could be enforced by judgment summons. Purchas LJ said it was 'clearly envisaged that process under that section [section 37] is part and parcel of the process of obtaining an order for financial relief such as a lump sum'.

He continued: 'Interpretation'¦ must be carried out bearing in mind the overall intention '¦ that the court should be given the teeth with which to deal with the recalcitrant party to a matrimonial suit.'

Symmons v Symmons [1993] 1 FLR 317 was a case in the Family Division where the husband had undertaken to pay to the wife a monthly supplement of £37.50 and to make payments in respect of school fees and school clothes, in addition to standard form periodical payments orders in favour of the wife and children. The wife issued judgments summonses both for arrears of the periodical payments and arrears arising from non-compliance with the undertakings. The application in respect of the periodical payments order was not controversial. In respect of the other undertaking the court held that the undertaking could be treated as a 'periodical or other payment having effect as if made under part 2 of the Matrimonial Causes Act 1973', falling into the category of maintenance order as defined and amenable to enforcement by judgment summons.

Nature of the payment

Regard must be had to the nature of the payment being undertaken to be made and whether it could properly satisfy the terms of section 11. Otherwise, I foresee a situation where committal proceedings are begun that are hopeless, or even where one party is persuaded to accept the drafting of the final order to include provision by undertaking rather than by order or some other route, believing the undertaking to be strictly enforceable by reason of the endorsement when it proves, after non-compliance, not to be so.

As to whether undertakings meet the strictures of section 11 or not, one common example is where a property is transferred to one party and the other party is not released from the mortgage liability because the lender considers there is little equity and the transferee's means do not give sufficient reassurance (a common scenario at present). Would an undertaking to pay the mortgage and other outgoings on the property (in the sole beneficial ownership of the giver of the undertaking) properly fall to be treated as an order under part 2? The court in Symmons did not distinguish the undertaking to pay the supplemental sum from the undertaking to pay school fees, so I suggest that the undertaking to pay the mortgage should qualify as an undertaking to pay money. The alternative to an undertaking in this situation is an order for periodical payments in a sum equivalent to the mortgage instalment from time to time due.

District judges will be looking not only at the reasonableness of the provisions of a consent financial order, but also the enforceability of it, and whether, for example, it would be better if a joint debt were discharged from the proceeds of sale when available rather than one party relying on an indemnity provided by the other.