My spouse/partner will not cooperate with the process of our break-up. Can Birketts help?
Yes. The Family Court has a range of powers that can assist. However it is worth bearing in mind that people find relationship breakdown difficult and stressful. Taking a punitive and confrontational approach is not the best place to start, particularly if you are going to co-parent children together.
Attending workshops to help co-parent after separation, or utilising a professional such as a systemic family therapist, may help resolve what are relationship, rather than legal, problems.
However, if it is necessary to ask the court to assist, it has a range of tools to try and force compliance.
Divorce
If a spouse or partner refuses to acknowledge service of the petition for divorce or dissolution sent by email or post then a process server can serve the papers personally. The process server will prepare a witness statement of proof of service. This will enable an application to be made to the court for deemed service (if the spouse or partner still does not acknowledge the petition). The court is likely to make an order for the reasonable costs of this to be paid by the uncooperative party, and enable the divorce process to proceed.
Finances
If a spouse or partner does not cooperate with trying to resolve the financial aspects of relationship breakdown, an application may be made to court. The court will set a timetable for the exchange of full and frank financial disclosure by way of Forms E with supporting documents.
During the court process, the court may make costs orders against an uncooperative party. The court may also attach penal notices to orders for example if a party refuses to attend court.
If a party is eligible to be paid spousal maintenance by the other and this is not being paid, and that party does not have access to other resources, the court may make an order for interim maintenance, and also for the payment of legal costs of a weaker party to allow a level playing field in terms of representation.
In some limited situations, the court may make orders to freeze assets pending a resolution of the finances.
At a final hearing, the court has a wide range of powers, including allowing one party to take charge of the sale of property. If a party's lifestyle does not match up with the level of income and capital disclosed by that party then the court may make assumptions about the party's actual wealth in making final orders. These assumptions could leave the uncooperative party worse off.
Children
Whilst the general rule is no orders for costs in children proceedings, the court may make orders for costs against litigants whose litigation conduct warrants it.
The court may also attach penal notices to children orders, including where a person refuses to attend court, and it may make orders in that person's absence.
A penal notice is a warning attached to a court order that if the other party fails to comply with the court order they will be held in contempt of court. The other party may apply for a committal order. If the court is satisfied that the person has not complied, the court has the power to imprison, fine or seize the assets of the non-compliant party.
The court may make orders preventing a person from making repeated applications without the leave of the court. This assists in preventing repeated applications.
Non-Molestation and Occupation Orders
When a party is abusive, the court has a range of powers to help control and stop this behaviour, including making orders that a person can no longer live in the family home.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
