Enforcement of judgment in Family Law matters: A reflection

Danai Chirawu
Unless one is a registered legal practitioner, the courtroom seldom becomes a common place even to settle scores. It is no small feat to institute legal action or to stand before the court being the one answering to a claim. Once a matter has been finalised, there is a misperception that the matter is simply laid to rest and no further action should be taken.

Many people perceive the law to be self enforcing and sometimes neglect to take further action once the court has ruled in their favour. There is a statement at law which speaks to the effect that the law serves the vigilant. That means that one has a better chance at being adequately served by the law when they report early and ensure that they follow through on whatever outcome the court realises.

Once a judgment is passed, it determines each party’s rights and obligations. If money is owed the judgment will state who when and how the money should be paid, if property should be returned the law will provide the same information; who, when and how. Some, after the judgment is passed; and often to their detriment simply acknowledge that a judgment is present and assume that everything has been resolved in court.

Needless to say that the judges themselves cannot physically be present to help one retrieve property or assume custody of the child after the judgment has been given.

Some people have been unfortunate enough to assume that nothing further is required of them once a ruling has been passed. Take the case of Nyarai who in 2000 filed for divorce and other ancillary relief. In 2001 she was awarded 40 percentof the matrimonial home which during the subsistence of the marriage was registered in her husband Totonga’s name. After her divorce, she continued to live in their matrimonial home.

In 2012, Totonga decided to get a loan from Barclays Bank using that same house as security. It is 2017 and Totonga’s failure to pay off the loan has resulted in the bank seizing the house and selling it off to another couple to recover the debt. Nyarai wakes up to a letter from the lawyers representing the bank that she has to move out of the house within 7 days.

This situation is not peculiar to Nyarai alone. Many people have found themselves in the same shoes oftentimes with little to no options. Had Nyarai been vigilant and more aware, she would have done things differently over 16 years ago.

In a divorce order where there is a house to be shared among other things; the court usually gives the parties to the divorce options. They may have the option for one to buy the other out so where one is awarded 40 percent, they can buy the rest of the 60 percent share from their ex-spouse. They may have the option to sell the house and share the proceeds according to the shares that the court would have awarded. They may even have the option to be jointly registered in a property though divorced couples rarely choose this option.

It is not the court that has the duty to sell the house; it is the parties to the divorce who have the duty to ensure that whatever is reflected in the judgment is also apparent in real life. They are expected to look for the evaluators which the High Court can enlist, they are expected to find buyers either by themselves or through an agent and they are expected to get whatever share of the house is owed to them once the house is sold.

The mere fact that a judgment exists is not enough. At the deeds registry, the divorce order does not automatically reflect in the file for the house in question therefore there is no way the Registrar of deeds will know of the changes to the title within that property unless this change is registered with his office. While both entities fall under the State, they are not an extension of the other; they are merely complimentary.

It is the same as getting a prescription from the doctor. It requires one to go to the pharmacy and to get the prescribed medication. This is followed by the expectation that one is taking the medication as stipulated by the pharmacist.

The relevance of enforcing a judgment is not limited or peculiar to divorce matters alone, it is important for all other judgments such as maintenance, custody, protection order among others. Once a person has been awarded maintenance, they have to wait until the end of the regulated month when the money should have been deposited into their account. If at the end of that period the money has not been deposited, the law states that they should obtain a warrant of arrest from the clerk of the Maintenance Court’s office which will be authorised by the police. This will include an application for the money owing.

Where the person is formally employed and gets a salary, they have the option to make an application for a garnishee order which means that the maintenance money will be deducted directly from their salary by the company/institution/firm/organisation with whom they are employed. If they are not formally employed they will still be expected to pay the maintenance money owing. Being informally employed does not eliminate a parent’s obligation to take care of their minor child.

If the person who is expected to pay maintenance neglects to do so, it is unwise to wait for months on end before approaching the court. This is because maybe by the time one makes the report, the amount would have been so high that the person cannot pay it off easily.

If there is a garnishee order in place and the person is no longer employed by that company or becomes a pensioner, it is necessary to go back to the Maintenance court to remove the garnishee order and maybe with the latter claim for a lumpsum maintenance. Once a person is no longer employed by the company, the company will simply stop depositing money.

Many women have been known to wait until the situation is dire and sometimes beyond reproof to report especially in issues of domestic violence. If a person obtains a protection order against another person there are certain things that the person reported against is expected to do and/or refrain from doing. Should this person disregard the conditions given in the protection order, the person who made the application should make a report to the police.

For example, if the protection order prohibits a person from physically and verbally assaulting another and the person proceeds to beat and threaten the person in whose favour the protection order is recorded, the latter should make a report to the nearest police station. The mere fact that a protection order exists may not be enough.

It is necessary to make a police report when violated. The protection order has the force of law to be the basis of an arrest but it will only work if an actual report is made with the police. There are countless examples of neglect to enforce an order that we can speak of. Sometimes when a person is awarded custody of a child, they may wait for months before collecting the child only to discover that the child has been relocated to the United Kingdom.

Such a move is not easily reversible regardless of a standing custody order. Where one is awarded custody of the child(ren), they must ensure that they collect the child(ren) with immediate effect and if they face any resistance should collect the children with assistance from the police.

It is the same where a person has been awarded property such as furniture by the court and waits for months or years to collect it. They will be at risk of finding that property damaged or destroyed and will have to go through another mammoth and costly court procedure of claiming the monetary equivalent of the same property. Surely a court order cannot be expected to physically preserve the property while one remains complacent and at ease.

One of the areas where it has been noted that people rarely enforce judgments is in deceased estates. A surviving spouse may be awarded a house which belonged to the deceased.

They choose to continue living in the property or where they are not living on the property continue to keep the property in the deceased’s name. It is important to note that there has to be transfer of the estate from the deceased to being registered in the surviving spouse’s name. Only then can the surving spouse lay claim to that property.

If the property is registered by way of cession the surviving spouse has to register the transfer with the municipality. If there are title deeds, the surviving spouse has to approach a conveyancer who will transfer ownership. What is evident here is that the surviving spouse has to act in accordance and fulfilment of the order given by the Master of the High Court.

A judgment by the Honourable Justice Mafusire comes to mind. A debtor was served with numerous papers asking that they pay back the debt. In the end an order was obtained in their absence because there was proof that they had knowledge of the existence of the court proceedings. When their property was now being removed, this debtor finally decided to act. The Judge in this matter simply stated that having been at peace all this while, they must forever hold their peace.

The same principle applies. If one is complacent enough to keep a written judgment neatly tucked away with the rest of their documents, they must not cry wolf when their position has been compromised due to their complacency. In short, after having chosen not to enforce the judgment; they must remain at peace!

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