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Mann v Mann [2016] EWHC 314 (Fam)

Mann v Mann [2016] EWHC 314 (Fam)
(Family Division, Roberts J, 18 January 2016)

Financial remedies – Enforcement – Arrears under consent order – Husband had failed to meet the terms of the order but had made significant payments to the wife - Application for committal

The husband was found to owe the wife £624,886 plus interest but the wife’s application for committal was refused on the basis that he had not had the means to make payment.

The wife applied for enforcement of a financial order made in 2005 pursuant to FPR 2010, r 33.3(2)(b). She sought a suspended order for the husband's committal to prison for his wilful refusal to pay her sums totalling £2m. The husband initially denied that sum was due and in any event claimed he did not have the means to make payment.

In the course of the original proceedings findings were made in the absence of the husband regarding his financial circumstances. He was found to have an interest in a valuable property in London. The husband never appealed that decision but maintained that he had no such interest.

The husband's Form E disclosed debts of £864,000. He had an income need of £146,000 pa with outgoings of £52,000 in respect of rent. He currently had no income and was in poor health. The wife had no income and had debts of £70,000 including rent arrears. She assessed her income need at £130,000 pa. Although the total sums due had not been paid to the wife he had made significant payments to her throughout the period since 2005 including payment of rent and other living expenses.

After hearing all the evidence in relation to the ownership of the London property, the judge was satisfied that the husband no longer held a legal or beneficial interest in the property. It was, therefore, not a financial resource to which he could look for the purpose of satisfying any debt due to the wife.

During the proceedings it was agreed between the parties that the total sum left outstanding to the wife was £1,698,330. It was further agreed that to date the husband had paid sums of £1,535,704. Child support payments of £118,680 also remained outstanding and the wife was granted permission to enforce those sums due since it was not possible to distinguish between the husband's payment of capital and income. Additional sums remained due in respect of rent for the wife and children which left a total of £624,886 which remained outstanding.

In respect of interest the wife was precluded by the decision in Lowsley v Forbes, as a result of s 24(2) of the Limitation Act 1980 from recovering arrears from 2005 to the present day. Her entitlement to interest as a matter of law on the outstanding sums payable ran for 6 years only. She would not be permitted to be paid interest on the maintenance arrears or on the rent since the husband had been making payments during that period, albeit not the total sums. The interest rate would stand at the judgment rate of 8% to reflect the compensatory nature of the award but she would be entitled to simple and not compound interest to reflect fairness to the husband in terms of the ongoing payments which he was continuing to make throughout this period.

Taking into account all of the evidence, including the evidence as to the husband's current level of indebtedness, there was no basis for drawing the inference that the husband could immediately procure the sort of sum which underpinned the wife's judgment summons. The wife had failed to discharge the burden of proving that the husband had the means to pay the wife the sums due but had willfully neglected to do so.

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: FD98D03022

Neutral Citation Number: [2016] EWHC 314 (Fam)


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/01/2016

Before :

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Between :


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Mr Rex Howling QC (instructed by the Applicant on a direct access basis) 
The Respondent acting in person

Hearing dates: 5th, 6th, 7th and 8th May 2015, 27th August 2015, and the 29th and 30th October 2015

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