Leave of the Court to issue execution

"Leave of the Court is required to execute a conditional judgment"

The property disputes between ex-spouses can be settled by the issuance of a Court decision, but this should be conditional and leave it to them to fulfil mutual obligations that one assumed towards the other. If there is co-operation and good will then each of the spouses receives what they have assessed and both are satisfied. However, there is a possibility that one of them does not fulfil the obligation he/she undertook or blames the other for not being ready to fulfil his/her own obligation or even filled a memo and prevents the fulfilment of the other's obligation. As a result, the issue becomes complicated and can take on years and new legal disputes until it finds its way to resolution.

It is wiser when resolving property disputes to find solutions that exclude the possibility of a spouse refusing to fulfil an obligation, he/she has undertaken. Where the payment of a certain amount is agreed, its payment should not be subject to conditions, such as the mutual and simultaneous transfer of property from one spouse to the other. The issue is that the decision regarding the monetary part to be enforceable and create a judgement creditor and a judgement debtor. The transfer of assets on both sides can be implemented by agreement of the spouses before the issuance of a judgement or with the judgement and for the monetary part to follow and a stay of execution to be given, as the parties agree.

Exemption from payment fees and taxes

?It is noted that the transfer of real estate between spouses in the context of the resolution of their property disputes are exempted from transfer fees, capital gains tax and/or from any other taxes and between ex-spouses with the judgement of the Court exemption from the obligation to pay fees and taxes is permitted by law.

Judgement of the Court of Appeal

The Court of Appeal in its judgement issued in C.A. No. E135/2023, dated 18.11.2024, resolved a long-standing dispute between ex-spouses for the execution of a judgement that was conditional on the payment of an amount of €1.000.000 by the husband and accompanied by mutual obligation to transfer immovable property at the same time on the part of both ex-spouses. The various measures taken by the wife to execute the decision concerning the monetary part were not successful and her applications were rejected at first instance and by the Second Instance Family Court, because she did not follow the provisions of O.40 r.3 of the Civil Procedure Rules, that were in force, to secure leave to execute the judgement, since the judgement was subject to conditions.

The wife, guided by the decisions of the Second Instance Family Court, filed an application at the first instance Court and requested an order for the issuance of leave to execute the judgment that was issued by consent, by which it was decided that the judgment debt is subject to execution and that she is a judgment creditor and the ex-husband a judgment debtor and that the wife was in a position to meet her own obligation.

The Court of First Instance held that the wife's application cannot succeed on the ground that the wife could not fulfil her own obligation, which had to be fulfilled simultaneously as the husband's obligation, who entered a memo for legal fees due.

Intervention of the Court of Appeal

In the context of the wife's appeal, the Court of Appeal held that it was not brought to the attention of the Court of First Instance that the wife, when she called the ex-husband to the Land Registry on a specific date for a simultaneous transfer, the property that she owed, according to the terms of the by-consent judgement to transfer, was free of all encumbrances and that she herself had complied with all her obligations.

It also added that the trial Court had failed to deal with the ex-husband's inability to meet the simultaneous obligation to achieve the transfer of a certain property to the wife due to its long-ago sale. Therefore, the trial Court did not acknowledge that the wife had fully complied with her obligations, the husband neither appeared nor could in fact fulfil all his own obligations. At that point in time, he gave the wife the right to apply to the Court for leave to issue writs of execution, since she became a judgment creditor and the ex-husband a judgment debtor, so the Court of Appeal intervened and issued the order.