Posted on 10th February 2016
In the recent case of Cherwayko v Cherwayko (No 3) the Husband was given a custodial sentence for contempt in financial remedy proceedings. He was sentenced to nine months imprisonment for breaching a Court Order by failing to attend a hearing, nine months for breaching a Court Order by failing to disclose information (the second nine months to run concurrently with the first) and a further 12 months for breaching an undertaking given to the Court.
The breach of the undertaking was considered to be more serious than the breach of the Orders because the Husband had deliberately sought to frustrate the final financial settlement. As part of the settlement the Husband was to give share certificates to the Wife as security for her claims pending the Husband paying the lump sums due in full. The Husband subsequently reported those share certificates as missing, had new share certificates issued and sold the shares. Mrs Justice Parker held that the Husband’s actions “utterly frustrated” the purpose of the undertaking being provided in the first place.
It is clear from the outcome in Cherwayko that the Family Court is becoming increasingly willing to commit those in breach of financial remedy orders. But how does a person get as far as putting himself at risk of a custodial sentence?
The Court is not going to send a person to prison the very second that he or she fails to comply with a Court order. An order for committal is an order of last resort and will only be made if the Court is satisfied that all other avenues have been exhausted. In many cases a warning by a Judge of the seriousness of failing to comply with an order can be sufficient. The possibility of a wasted costs order being made or of a penal notice being attached to an order also act as strong deterrents for most.
If all possible deterrents have been utilised and a person still refuses to comply with an order the only option that remains is for the party complaining of the breach to make an application for committal. This can only happen when an order has been breached and that order has a penal notice attached to it. The application for committal must clearly set out the breach and the warnings given in respect of failure to comply. The application must be personally served on the person in breach of the order and 14 days’ notice of the hearing must be given.
It is very often the case that a person will take steps to comply with an order before the committal hearing takes place. It can then at least be demonstrated that steps are being taken even if those steps are late in the day. This may enable a judge to suspend any custodial sentence imposed to enable full compliance with the order.
In Cherwayko the Husband had been given numerous opportunities to comply with orders and had failed to do so. He gave several explanations to the Court as to why he had failed to comply but he did not provide any evidence to support those explanations. For example he said that he was unable to attend a hearing because he was receiving medical treatment in America but he failed to provide any evidence of his illness or of the treatment that he was receiving. The Husband also failed to attend the committal hearing.
The Husband in Cherwayko is a clear example of an individual who did everything within his power to frustrate the Court process. He was not interested in complying with the orders of the Court and as a result he was sentenced to 21 months in prison. The fact that the Husband remains outside of the jurisdiction however, should be taken with a pinch of salt…
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