Family Court Has High Court Powers
24th November 2017Back to articles
When a couple divorced, their financial settlement was complicated by the fact that both of the properties they owned jointly were mortgaged.
The Family Court ordered that they should each have one of the properties and use their best endeavours to release the other from their obligations under the mortgage.
If that proved to be impossible, each should indemnify the other against any liability under the respective mortgages, such that each alone would be responsible for the payment of the mortgage on the house they occupied.
When problems occurred with regard to the payment of one of the mortgages, a legal argument arose as to whether the Family Court had the power to make an order including the indemnities or whether its powers were 'confined to the four corners of the Matrimonial Causes Act'.
In a terse judgment, Mr Justice Mostyn stated that 'the Family Court has all the powers of the High Court. The High Court unquestionably has the power…to order an indemnity. If awarded, that represents a legal right in favour of the person so indemnified.
The court can award an injunction in support of a legal right. To order someone who has been ordered to indemnify the other party in respect of a mortgage to use his or her best endeavours to keep up the payments on that mortgage is of the nature of an injunction in support of a legal right.
In my opinion, this provision is squarely within the power of the High Court to order, and is therefore within the power of the Family Court.'
Alexander David, Head of Family Law says "The ruling confirms that the Family Court has the powers of the High Court in these circumstances. This means it can make orders for indemnities and injunctions, which may be necessary in cases where the existing financial arrangements are tricky to separate out."
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