Refine By
Clear all filter
About 92065 results for "*"
The pari passu principle and collection remedies for the office-holder
PRACTICE NOTES
The primary function of office-holders in both corporate and personal insolvency is to collect in the assets of the company or individual, realise and distribute them to the company's or individual's creditors in accordance with the statutory waterfall. For further information, see Practice Notes: • Waterfall of payments—a comparative guide • Waterfall of payments in administration • Waterfall of payments in liquidation • Waterfall of payments in bankruptcy • Waterfall of payments in administrative receivership Pari passu distribution Pari passu is a Latin phrase meaning 'with an equal step' or 'on equal footing'. For the purposes of insolvency it encompasses the principle of proportionality and is referred to when stating how creditors are to be treated as against each other. If they are ranked 'pari passu' then each creditor in the same class is paid equally and without preference to one another. If there is not enough money in an insolvency to pay creditors in full, they will be paid pro rata on a pari passu
The parties agree a financial settlement on divorce so that the family home was to be transferred to the wife for nil consideration. The husband had no other assets and applied for an individual voluntary arrangement (IVA) prior to the transfer of the family home and before a financial order had been made. Can the IVA insolvency practitioner insist that the husband's share of the family home is part of the IVA and be used to pay his debts so as to prevent the transfer for nil consideration taking place?
Q&As
An individual voluntary arrangement (IVA) is an arrangement whereby an individual debtor avoids bankruptcy by entering into a repayment plan with creditors. An IVA will ordinarily state that specific assets are held by the debtor on trust for the purposes of the IVA; in that respect it is different to bankruptcy where all the bankrupt's assets and interests automatically vest in the trustee in bankruptcy for the benefit of creditors. The effect of the entering into an IVA is that there is otherwise an equitable
The parties agreed child maintenance in 2007 through a family based agreement for two children, who are now age 16 and 21. The 21-year-old completed their full time education in 2017. At some point, the paying parent’s income increased, and the parties are agreed that a sum may be owing as to the difference between the sums paid and the amount that would have been calculated by the Child Maintenance Service (CMS). Could the CMS be asked to calculate arrears as to the difference between the sums paid and the sum that would have been paid had a calculation been made on the basis of the increased income, and if so for what period of time? If not, what other remedies may be available if the matter cannot be agreed?
Q&As
In this Q&A, neither parent applied to the Child Maintenance Service (CMS) for a maintenance calculation in respect of the children. If an application were to be made to the CMS now, the first point to note is that it could not be made in respect of the
The parties agreed to stay the original divorce petition and to proceed on the basis of the respondent’s cross petition. Decree nisi has been pronounced on the respondent’s petition but it refers to the first petitioner as being the petitioner. How should the first petitioner apply for decree absolute, should it be on Form D36 or by an application under Family Procedure Rules 2010, SI 2010/2955, Pt 18?
Q&As
If a respondent files an answer they remain the respondent in the first divorce proceedings, but they become the petitioner/applicant in relation to any petition that they have issued. A decree nisi may not be made absolute before the expiration of six weeks from the date it is granted, unless the court in which the proceedings are pending by special order fixes a shorter period. As soon as this period expires the person who obtained the decree, may apply to have it made absolute by lodging with the district judge a notice in Form D36. The district judge then has regard to the matters set out in the Family Procedure Rules 2010
The parties are divorced and the husband is bankrupt. The only jointly-owned asset is the former matrimonial home. The parties have agree that the wife will pay a sum to the trustee in bankruptcy for the husband’s interest in the former matrimonial home, but that sum is insufficient to meet the debts of the husband so he will remain bankrupt. Can a financial remedy order be made by the court, either as to property adjustment or to dismiss the parties claims with provision for the parties to retain their sole assets?
Q&As
Where a party to a marriage or a dissolved marriage following a divorce has been made bankrupt, the court has limited powers to make financial remedy orders. A property adjustment order cannot be made in respect of a property in which the bankrupt has an interest save in respect of the residue of the proceeds of sale following a discharge of the bankruptcy (per Ram v Ram (No 2)), as the interest is no longer that of the bankrupt spouse by reason of the
The parties are joint tenants in relation to the former matrimonial home. By agreement, they remortgaged the property to release equity. On the breakdown of the marriage, one spouse asked the other spouse to repay sums from the equity release, which they refused to do. Where a sum has been withdrawn from the marital joint assets and spent on a mutually agreed venture, what obligation does a spouse have to repay that sum to the other spouse should the marriage end?
Q&As
While spouses are able to enter into contractual and debt arrangements as between themselves, on the coming to the end of a marriage, the financial position will be governed by the Matrimonial Causes Act 1973 (MCA 1973). Although the court can take into consideration agreements reached between the parties in this respect, that will only be one factor in all of the circumstances of the case. On or after a petition for a decree of divorce (or judicial separation or nullity), either spouse can make an application to the Family Court in Form A for
The parties are married and lived in a property jointly owned by one spouse and a third party. The parties separated and the applicant spouse obtained an occupation order for a period of four months. The applicant now wishes to register a matrimonial home rights notice with the Land Registry against the property owned by their spouse and the third party. Can the applicant register such a notice, and are they assisted by the decision in Abdullah v Westminster City Council [2011] EWCA Civ 1171?
Q&As
A home rights notice under the Family Law Act 1996 (FLA 1996), as amended by the Civil Partnership Act 2004, gives protection to a husband, wife or civil partner (‘non-owning spouse or partner’) where the matrimonial home is owned solely by the other spouse. It protects the right of occupation if the non-owning spouse or partner is living in the matrimonial home, with the other spouse or partner unable to evict them without an order of the court. Additionally, the owning spouse or partner will be unable to sell the matrimonial home
The parties are not married or in a civil partnership and jointly own a property. One party and her children from a previous relationship live in the property. Can that party oppose an application for an order for sale on the basis that she needs the home for the children, even though they are not the other party’s children and were never treated as ‘children of the family’?
Q&As
By virtue of section 15(1)(c) of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996), the court, when determining an application for an order under TOLATA 1996, s 14, must have regard to ‘the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as [their] home’. The court is bound to
The parties divorced and a financial order was made in Japan including provision for spousal and child maintenance. The payer, who lives and works in London, has breached the orders and is in arrears as to the maintenance payments. Can the payee, who lives in Hong Kong, enforce the Japanese order in England and Wales?
Q&As
There are no reciprocal enforcement arrangements in existence in relation to Japan, eg Japan is not a contracting party to the Hague Maintenance Convention 2007. However, where a judgment of a foreign court is final and conclusive and for a definite sum of money (including costs and arrears of maintenance providing they may not be remitted in Japan, but not continuing maintenance which is of its nature not final or conclusive per B v R), it may be enforced in England and Wales at common law without a reciprocal enforcement arrangement with the foreign
The parties entered into a financial remedy order by consent which included an undertaking by one party to use their best endeavours to secure the other party’s release from the joint mortgage, which they have failed to comply with many years after the order was made. The order did not include an order for sale, can the other party apply to enforce the undertaking and/or seek an order for sale?
Q&As
A distinction is drawn between the enforcement of an undertaking for the payment of money and an undertaking to do or abstain from doing any act other than payment of money (Family Procedure Rules 2010 (FPR 2010, PD 33A). In the latter case, the aggrieved party may make an application as to contempt. The court may find a party who has failed to comply with a non-financial undertaking in contempt of court. Whether such an order would be made and, if it is, what penalty the court may impose will depend on the precise circumstances of the case, including any delay in bringing the application and the reasons for that delay. As
The parties entered into a religious marriage conducted in Sri Lanka in accordance with the law and customs of that country, by a Nikah ceremony. They want to divorce and have already started their religious divorce in Sri Lanka. Both parties are habitually resident in England, one is a British citizen from birth and the other party's application for British citizenship was awarded five years after the marriage. Should they also seek a divorce in this country?
Q&As
The first question to consider where parties have entered into a religious marriage in accordance with the law and customs of a foreign country is whether that marriage is recognised in England and Wales. For a marriage in the UK to be recognised, there must be a civil registry marriage as well as any religious marriage ceremony (Marriage Act 1949; Marriage (Same Sex Couples) Act 2013 ). The pronouncement of a Nikah without more in the UK will not amount to a valid marriage. However, a foreign marriage can be recognised as valid where it is recognised as
The parties have agreed to sell their family business, which is jointly owned with no third party interests. Does the court have the power to make an order for the sale of the business or is an agreement for the sale of a business expressed as a recital or undertaking?
Q&As
An order for sale under section 24A of the Matrimonial Causes Act 1973 (MCA 1973) may only be made if there has been a legal services payment order, a secured periodical payments order, a lump sum order or a property adjustment order. Orders for sale are most commonly made as an adjunct to a lump sum order or a property