Q&As

Can a financial remedy order include both an undertaking and an order requiring a party to make mortgage payments to maximise the options for enforcement?

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Produced in partnership with Nicholas Starks of St Ives Chambers
Published on LexisPSL on 09/04/2020

The following Family Q&A Produced in partnership with Nicholas Starks of St Ives Chambers provides comprehensive and up to date legal information covering:

  • Can a financial remedy order include both an undertaking and an order requiring a party to make mortgage payments to maximise the options for enforcement?

Undertakings are the bespoke way of including enforceable obligations in the preamble to a financial remedy order which the court would otherwise have no power to order. For example, in L v L, a party was held to their undertaking to pay maintenance beyond the remarriage of the recipient, notwithstanding a standard periodical payments order would have effluxed in that event.

However, where the court has the power to make an order in the terms sought, there is little obvious benefit in including an undertaking to the like effect, as Family Procedure Rules 2010, PD 33A, para 2.1 provides that: ‘Any undertaking for the payment of money that has effect as if it is an order made under Part II of the Matrimonial Causes Act 1973 may be enforced as if it was an order and Part 33 and Part 37 [of the FPR 2010] apply accordingly’.

Accordingly, while an undertaking to pay money cannot be enforced by committal for contempt of court (Buckley v Grawford), it can be the subject of committal by way of judgment summons under section 5 of the Debtors Act 1869 (Symmons v Symmons) or by way of a third party debt order (Gandolfo v Gandolfo) if it is an integral and indivisible part of the order.

On the question of whether ‘the court has the power to order a party to

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