Enforcing A Final Financial Remedy Order Abroad: Australia And New Zealand

Many contemporary families cross the globe, as do their assets. This can present unique challenges in enforcing court orders across jurisdictions, and running proceedings solely in England and Wales may not be enough.

In this article we explore the enforceability of final financial remedy orders made in England and Wales in two jurisdictions to which the UK has close historical and current ties: Australia and New Zealand.

In summary

It is possible to enforce a lump-sum provision in a final financial remedy order in both these jurisdictions because the UK has reciprocal arrangements with Australia and New Zealand. In both cases, the UK order would need to be registered in the other jurisdiction first, and we explore how to go about this in detail below.

An order for anything other than a lump-sum payment of money would follow a different route. For example, where there is an order for the transfer of property, there would need to be a mirror order in Australia and/or New Zealand. The final order in England should contain a provision to say that a mirror order is or will be put in place in the other jurisdiction, and the parties must comply with the mirror order. During the negotiations or court proceedings it would be sensible to liaise with a family lawyer in the relevant jurisdiction to draft a mirror order for filing with the Australian/New Zealand family court. Any issues in enforceability of the relevant provisions can then be properly dealt with in that jurisdiction.

Preliminary: enforcing orders for the payment of money in the English & Welsh family justice system

Financial remedy proceedings might conclude, among other things, with an order for the payment of money (e.g. for one party to transfer a lump sum or a series of lump sums to the other). This type of “money judgment” can be enforced in Australia and New Zealand.

The relevant rules for enforcing a money judgment arising from family proceedings in England & Wales can be found in Part 33 of the Family Procedure Rules (FPR).

Now let’s say there were insufficient assets to enforce against in England & Wales but there were in Australia and New Zealand. What would you do?

Enforcing English & Welsh court orders in Australia

If you have a money judgment from an English & Welsh court, there are special arrangements for enforcing it in Australia.

The special arrangements are contained in two pieces of Australian legislation: the Foreign Judgments Act 1991 (“FJA 1991”) and the Foreign Judgments Regulations 1992 (“FJR 1992”).

Section 5(1) and 5(3) of FJA 1991 allows the Governor-General of Australia (in real terms the Australian federal government) to make regulations under which the Australian courts will enforce foreign money judgments if Australian money judgments receive reciprocal treatment.

However, FJR 1992 only refers to orders made by the High Court, so any orders made by a lower court would first need to be transferred to the High Court for enforcement under FPR 33.4.

On the Australian side, a foreign money judgment can be registered with the Supreme Court of the Australian State or Territory where the paying party lives. To do so, the judgment must be final and conclusive. A judgment is final and conclusive even if an appeal is pending against it or it may be subject to appeal.

You can register a judgment within six years of the judgment date or the date of the last judgment in any appeal proceedings.

On registration, it will have the same force and effect in Australia as if the court at which it was registered itself made the judgment. This is subject to the right of the paying party to apply for the judgment to be stayed or set aside.

For a non-money judgment, the special rules in FJA 1991 and FJR 1992 would not assist. Instead, to ensure cross-border enforceability, you would need to launch separate financial remedy proceedings in Australia under local legislation and obtain mirror orders between the England & Welsh and Australian courts.

In this context, the orders “mirror” each other because they state the same terms. In this way, each court order is enforceable in each jurisdiction but neither contradicts the other in how assets should be treated.

To achieve this result, it is prudent to ensure that the English & Welsh order contains provisions that require the parties to cooperate in causing a mirror order to be made in Australia.

As in England, it is possible for parties to file a “consent order” if they can agree on how their assets should be divided on divorce. This means that any such proceedings can be concluded by negotiation rather than being contested.

In the same way that an English consent order would have to be compatible with the requirements of the Matrimonial Causes Act 1973, an Australian consent order would have to comply with the requirements of the Family Law Act 1975. As above, liaison between English & Welsh and Australian lawyers would be necessary to find a common set of terms that would be compatible with both legislative frameworks.

It is noteworthy that there are specific legislative provisions in Australian family law around overseas maintenance agreements. An Australia-based family lawyer would be able to advise on any effect of these provisions in a case.

Enforcing English & Welsh court judgments in New Zealand

As with Australia, New Zealand has special reciprocal arrangements with England and Wales in respect of money judgments.

Two pieces of legislation are applicable: the Reciprocal Enforcement of Judgments Act 1934 (“REJA 1934”) and the Senior Courts Act 2016 (“SCA 2016”).

Briefly, REJA 1934 applies to a money judgment made by one of the Senior Courts of England and Wales. In the family context, this means High Court judgments made at first instance. A judgment of the Family Court, as well as a judgment originally made by the Family Court and appealed to the High Court, would not count.

By contrast, SCA 2016 applies to any court in a Commonwealth country (including England & Wales as part of the UK). This would include the Family Court.

Under Part 1 of REJA 1934, a money judgment may be registered within six years of the date of judgment or the date of the last judgment in any appeal proceedings. There is a similar “final and conclusive” rule as under the Australian legislation (including that an appeal or the availability of an appeal does not preclude a judgment from being final and conclusive).

After registration, the paying party could apply to have the registered judgment set aside or adjourned. Otherwise, the judgment will be enforceable as if it were a judgment of the High Court of New Zealand.

Under section 172 of SCA 2017, a party with a money judgment in their favour may register it with the High Court (referred to as filing a “memorial” in the legislation).

Once a memorial is filed, an application can be made to the High Court for a summons of the paying party. Briefly put, this is the court asking the paying party to explain why the judgment should not be enforced against them in New Zealand. If they fail to persuade the court not to do this (or if they do not engage with the proceedings), the judgment will then be enforceable in New Zealand as if the High Court had made the judgment itself.

For non-money judgments, an analogous process would be followed to that described in the Australia section of this blog: seek a financial remedy order in England and Wales that commits the parties to achieving a parallel result in New Zealand, and then subsequently obtain such an order from the New Zealand courts under the local law.

As with Australia, there is also specific legislative provision around overseas maintenance orders. A New Zealand-based family lawyer sourced by the firm would be able to advise on any effect of these provisions in a case.

Next steps

Receiving a judgment at the end of contested financial remedy proceedings can feel final, but there is still the issue of enforceability. Having the order is one thing; getting the asset in your hands is another.

Our expert international financial remedy solicitors would be happy to assist. If you would like to schedule a consultation with one of the team, please call 0330 822 3451. We offer flexible meeting arrangements at our offices in Central London, Wandsworth, Stratford and Orpington.

Our family team does not offer advice around family law matters in Australia or New Zealand. However, we maintain strong international links, and we can help with finding skilled lawyers in these jurisdictions to help with this.

Please note that Hodge Jones & Allen’s family team does not hold a Legal Aid contract and is therefore unable to provide Legal Aid services. All family matters are undertaken on a privately funded basis only.