Recently, I have had several cases where one party refuses to engage in family finance proceedings. I thought, therefore, it would be a good time to take a look at the courts’ powers in these situations and the remedies that are available to the party that is willing to engage.
Firstly, the court cannot compel an individual to take part in proceedings if it has been acknowledged that someone does not wish to be involved.
Before consideration of a potential application is made, the engaging party should ensure that the other side is properly served of the proceedings. Under Part 6 of the Family Procedural Rules 2010, service should first be attempted personally and then, in the event that this is ineffective, alternate service can be attempted after an application has been made to the court. It is vital that the engaging party can show that service has been completed or, at least, that active steps to serve have been attempted.
If at this stage, the service has been effective but the party is not engaging, what is available to the applicant?
Upon the application of a party, the court can attach a penal notice to an order seeking someone’s attendance. This can be effective in matters where there is a large amount of information which remains outstanding.
In issues of non-engagement in financial proceedings, if one party fails to disclose information it can leave black holes in the available assets. This will not provide a clear and accurate representation of the available funds to be distributed.
If a penal notice is attached and the other party still fails to engage, that party will be in contempt of court. Contempt of court proceedings are separate to the finance proceedings and have their own set of laws The party applying for contempt of court will need to prove beyond reasonable doubt that the other side has failed to engage and is in breach of the court order. If contempt of court is found, the party in contempt could face a maximum penalty of up to 2 years in prison.
Considering this, and the fact that it will not progress the financial remedies further, it is worth considering what the appropriate way forward would be.
Consideration should first be given to the amount of disclosure which has taken place so far. If there is no disclosure from the other side, the court can draw adverse inferences from a lack of disclosure (NG v AG [2011] EWHC 3270 (Fam); both parties have a duty to provide full, frank and clear disclosure in financial proceedings.
When attending the first appointment, if no information has been provided by the other side, the court is likely to list for an adjourned first appointment. At this stage, it is important to ask the court to include on the face of the order, that, should there be a continuation of non-engagement then the court may make a final order in their absence.
By having this included in the order, it should either encourage the other side to attend and engage with proceedings or it allows you to have a final order made at the next hearing. This is beneficial as it means the applicant doesn’t have to keep racking up their costs. However, there is a downside. They may not have a full picture of the available funds and this could incur a loss through the lack of engagement.
Should the applicant be made aware at a later date to available assets which were never disclosed, they have the remedy of applying to set aside or varying the order (Part 9.9A of the Family Procedure Rules 2010).
As set out, these are options available to a party when one person is refusing to engage in proceedings. Before seeking a final order, the available funds and information the applicant has need to be considered. It may be, that should there be minimal assets (at least without further disclosure), the applicant will not receive a fair outcome from the finance proceedings. It is therefore useful to consider all the options available before seeking particular orders to be made.
If this blog raises any questions relating to cases in which one party has refused to engage in family finance proceedings, please contact our experienced family law team today.
This blog was written by Ben Butler, who specialises in Financial Remedy Proceedings. Please get in touch if you have any additional questions and we will be pleased to help you.