Committed to committal? Morris v Morris  EWCA Civ 812
Family judges have a number of strings to their bow when it comes to forcing parties in breach of a court order to rectify that breach. These range from compelling a party's employer to pay their salary (or part of it) to their ex-spouse, fining them or even sending them to prison. The Morris v Morris case demonstrates that when it comes to applying to send someone to prison, it is essential to follow the proper process.
Mr and Mrs Morris's marriage broke down after 25 years. The wife's financial claims were determined at a final hearing in August 2014 before His Honour Judge Brasse. HHJ Justice Brasse found that the wife should receive 88% of the capital, with the husband receiving the remaining 12% (albeit the husband was to receive 75% of the pension funds). In addition, the husband was found to have a surplus income of £2,000 net per month, and he was ordered to pay this to the wife in maintenance.
The wife applied for a judgment summons later that year in respect of arrears totalling nearly £12,000. A judgment summons is an application to commit someone to prison for failing to pay a matrimonial debt, if they have the means to pay but refuse to do so. They may be committed to prison for a maximum of six weeks, or until payment of the sum due.
The first hearing in respect of this application took place in January 2015. The judge ordered that the husband "shall" file and serve a statement of his affairs to show whether he could afford the maintenance. In February 2015, the husband issued an application to vary the maintenance order downwards. His application was dealt with by HHJ Hughes in May 2015 at the same time as dealing with the judgment summons. The judge made a suspended committal order, ordered the husband to pay the wife's costs of the judgment summons application and varied the maintenance downwards to £1,750 per month because the wife now had a job which provided her with some limited earnings.
The husband appealed.
The court set aside the suspended committal and costs orders because there had been fundamental procedural errors. The court highlighted the following procedural considerations that should be kept in mind:
- A judgment summons is a form of criminal proceedings.
- In criminal proceedings, a respondent cannot be required to give evidence: they have the right to remain silent and are entitled to legal aid so that they can be represented.
- An unrepresented respondent must be informed of these rights.
In this case, the husband was not informed of his rights and should not have been required to file and serve evidence, or give evidence at a hearing, in breach his right to remain silent.
The court dismissed the husband's appeal against the variation of the maintenance order (he wanted the maintenance order decreased even further). The court of appeal clarified that if a court is considering a variation application there is no requirement for the court to consider matters afresh. The court can consider the changes and carry out a "light touch" or broad assessment, or a more detailed exercise, if that is appropriate in all the circumstances of the case.
This case acts as a reminder that committal proceedings, even if arising from family proceedings, are criminal proceedings and certain rights, such as the right to silence and to legal aid, must be upheld as sacrosanct.
The case also reminds us that family judges have a wide discretion when it comes to determining variation applications, and there will need to be a change in circumstances for such an application to succeed. No doubt this is to promote the certainty of litigation and to avoid the floodgates being opened by applications to vary, as opposed to appeals, if the parties do not like the outcome.
Sam Longworth, partner in the divorce and family department comments:
"This case highlights the broad issues that can arise in family litigation, and the need for practitioners to be alive to the different standards of proof and evidential rules that can apply when civil and criminal law coincide. It also highlights the courts ability and willingness to take a pragmatic approach to variations of maintenance."
Sam Longworth is a Partner in the Divorce and Family team. He has particular interest and expertise in the resolution of complex financial issues for high net worth individuals both married or unmarried. Many of his cases involve trusts, tax issues, inherited wealth and the tracing of assets. Sam also advises on disputes relating to children including contact, paternity, residence and financial provision.
Chambers 2017 states "Sam Longworth is "a real one to watch for the future," according to market commentators, who add: "He is a deep thinker tactically and a hard fighter." He is experienced advising on high-value matrimonial finance cases, Schedule 1 proceedings and nuptial agreements."
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