Enforcement of Financial Orders

The recently reported case of Hersman v De Verchere [2023] EWHC 3481 (Fam) dealt with an issue that is less commonly before the court – enforcement.? In the ordinary course of events, a couple will agree an Order (or the court will impose an Order) about how assets are to be divided, and the couple will go on to implement that Order between the two of them. Whilst there can sometimes be delay or procrastination, whether deliberate or unforeseen, for the most part an Order is implemented as intended by the couple or court.? Hersman dealt with an Order that one of the parties refused to implement, and is a timely reminder that a judge will not pull any punches when applying sanctions.?

The application before the court as reported was whether Ms De Verchere should be committed to prison for contempt of court.? Financial proceedings within the divorce of her and Mr Hersman had finalized in 2019.? Among the ordered requirements was for two properties – Chalet Pearl in Courchevel and Villa Pearl in St Tropez – to be transferred to Mr Hersman in return for a lump sum to Ms De Verchere.? Ms De Verchere was also to be released from her mortgage covenants.

There was some delay before the matter came back before the court in 2022 on Mr Hersman’s application to: (a) enforce the Order; and (b) for Ms De Verchere to account for all monies received from rental of the properties since 2019.? The judge, Moore J, heard that substantial rental income had been received by Ms De Verchere and ordered vacant possession of Chalet Pearl by early March 2023.? Ms De Verchere was also directed to hand over all keys, access codes, documentation relating to rental and to transfer any rental deposits.? Mr Hersman was to take over paying the mortgage and outgoings and release Ms De Verchere from the mortgage; she in return was to transfer her interest to Mr Hersman.?

Ms De Verchere applied for permission to appeal but this was denied.? At the end of March 2023, Mr Hersman applied for Ms De Verchere’s committal to prison, raising six separate allegations of contempt:

?·????? Failure to deliver up vacant possession;

·??????? Failure to surrender the keys and access codes;

·??????? Failure to deliver up the documentation;

·??????? Failure to transfer the deposits;

·??????? Failure to pay money into an escrow account (per a previous Order);

·??????? Non-transfer of legal title to him.

Ms De Verchere did not appear at the hearing of the committal application and advanced in writing several reasons for this.? She also advanced several allegations about what she perceived to be Mr Hersman’s failure to do what was required of him.? Having reminded himself of the opportunities presented to Ms De Verchere to properly present her position, which she had not pursued, the judge was content to proceed with the committal application in her absence.

The judge set out that the burden of proof fell strictly on Mr Hersman to a criminal standard – namely that the judge had to be satisfied of contempt of court beyond reasonable doubt.? In respect of the first four allegations of contempt, the judge found beyond reasonable doubt that Ms De Verchere was in contempt and had failed to do what was required of her by court Order.? In respect of the fifth allegation, the judge did not find this proven though noted that a trial to a lower civil standard of proof would take place at a later date.? In respect of the final allegation, the judge could not find contempt beyond reasonable doubt as there was uncertainty as to whether Ms De Verchere had been presented with transfer documents, or told that Mr Hersman had a mortgage arranged.? Given that the first four allegations were found proven, however, contempt overall was also proven.

The judge reminded himself that there are two elements to sentencing for contempt - the first is to punish the relevant person for the proven contempt; the second is to secure compliance with the original Order.? The judge took the view that contempt of a High Court Order was a very serious matter and a court requires compliance.? Here, it appeared that the contempt was considered to be deliberate; extended over a long period; there was no obvious remorse or apology; and there was no clear indication that the property would be transferred to Mr Hersman.

The judge concluded that the contempt was so serious that an immediate sentence of imprisonment was the only sentence that he could pass.? He considered that three months – of which Ms De Verchere should serve half – was an appropriate period.? In doing so, the judge gave Ms DeVerchere permission to apply to purge her contempt and that he would be receptive to that application if it also involved giving Mr Hersman vacant possession; the keys and access codes; documentation; and cooperated in transferring the property to him.?

Whilst contempt issues that reach the court may be few and far between, the reporting of this case underlines that a judge will take action on non-compliance and contempt where it arises.? It can be expensive, stressful and frustrating if one person refuses to do what is required of them given that it ultimately denies another an asset which is already ordered to belong to them.? Many people going through a difficult divorce often want to put the matter behind them at the earliest opportunity.? It can be a waste of court time and resources if a persistently non-compliant person – for whatever reasons that person may assert - ensures a matter comes back repeatedly before the court.? It is not reported whether Ms DeVerchere avoided her sentence by doing what was required of her, the judge having thrown her a lifeline.? Having exhausted all other means of trying to frustrate finality it is to be hoped that she was, finally, compliant.?

Georgina Rayment

29 May 2024