Co-operation and contempt in divorce

There is no ‘ideal’ divorce. Whatever the circumstances, divorce is tough and upsetting. Ultimately, though, divorce is about co-operation, however hard that co-operation may be to stomach. And those involved in a divorce who refuse to play by the rules could find themselves facing more than an acrimonious separation, as the recent case of Parkinson v Daley highlights.

The penalties of non-cooperation

There has been a welcome move towards a less combative approach to divorce in recent years, with the introduction and increasing use of dispute resolution. However, a number of couples will inevitably end up going through the courts to end their relationship.  Both voluntarily and within the court process, the parties involved have an obligation to co-operate with the court and the legal process.

One area that is always contentious is that of the financial arrangements that flow from the divorce. In reaching a determination, the court needs to have full disclosure of the respective parties’ assets. These are provided in a Form E. In Parkinson v Daley, the wife applied to the court for a financial settlement. Her husband refused to comply with the requirement to complete a Form E no later than 35 days before the hearing. The husband then failed to attend the hearing in May 2016, and was ordered, in his absence, to complete the Form E by 4 p.m. on 8th July 2016. The order was endorsed with a penal notice advising him of the possible consequences of failing to comply. These consequences included, ultimately, a prison sentence.

He did not complete the form nor did he attend a hearing fixed for 3rd August 2016. At this point, his wife applied, as she was entitled to do, for his committal to prison. The husband was once again a ‘no show’ at the hearing fixed for 19th October 2016, at which the judge found that he was in contempt of court by failing to file his Form E. The husband was sentenced to 3 months in prison, suspended for 14 days to give him one final chance to complete and return his Form E. The husband yet again failed to comply and was committed to prison for 3 months.  So, for those assuming that a prison sentence could not possibly result, think again!

Not an isolated case

This case came relatively hot on the heels of Trott v Trott and another [2016] EWFC B35 in which an ex-husband and his new wife both found themselves facing prison after they had failed to comply with court orders regarding the disposal of assets and securing of funds from the ex-husband’s first marriage. Although the new wife’s 14 day sentence was suspended and she avoided jail, the ex-husband spent time in custody, his 3 sentences (two of 28 days and one of 3 months) running concurrently. The judge remarked on the gravity of the breaches and their repeated nature.

In Zuk v Zuk [2012] EWCA Civ 1871, Mr Zuk spent 4.5 months in prison for failing to pay his ex-wife a lump sum of £15,000 that had been ordered by the court. Ultimately, an appeal hearing found that the committal judge had misdirected herself as to the length of sentence she could impose. However, in Young v Young [2013] EWHC 34 (Fam), the serial non-compliance of Mr Young with a number of court orders relating to the provision of financial information eventually led to him receiving a 6 month sentence. Finally, perhaps the most extreme example of contempt of court in divorce proceedings leading to imprisonment is the case of Thursfield v Thursfield [2013] EWCA Civ 840. In this case, the ex-husband received the maximum sentence available – 24 months – due to his continued non-compliance with court orders, and aggravating factors such as his refusal to enter the jurisdiction.

Using dispute resolution can completely avoid the need for litigation

Thomas Mansfield Family Law is very much committed to resolving issues arising from marital breakdown through dispute resolution rather than through the courts. Collaborative law and mediation offer alternative paths: quicker, cheaper and a great deal less stressful than going to court. However, they also require both parties to take a longer-term view and see that co-operation and compromise – however painful, will lead to a more beneficial overall outcome for everyone. These approaches can be particularly helpful where children are involved. For dispute resolution to be successful, both parties need to accept the need for all the cards to be on the table at an early stage. This may not be palatable for some dealing with a relationship breakdown, but the reality is that regardless of the route by which you achieve divorce, you will need to co-operate. Doing so sooner rather than later can save a lot of heartache and help you achieve a more workable settlement, due to the flexible nature of dispute resolution. If (thankfully, rarely) the process fails, court is always there as a final resort.  However, as outlined above, do not be tempted to flout the financial disclosure rules because you will do so at your peril.

If you’d like to know more about the benefits of collaborative law and mediation or want advice in connection with your separation or divorce, we’ll be happy to help – call 020 3504 5300 to talk to a specialist family lawyer.

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