The draft “Mostyn” financial remedies order provides for the court to actually order a party to procure mortgage release and to indemnify. By virtue of what authority can the court do this? Also, is it essential for a child periodical payments order to apportion maintenance between more than one child rather than just order a global sum?
The High Court powers given to the family court by Matrimonial and Family Proceedings Act 1984, s 31E(1) may enable it to order one party to indemnify the other, but there is no authority for making an order requiring release from a mortgage. On the contrary, the Court of Appeal has expressed the view that the court is not able to order a party to secure release from a mortgage: see Birch v Birch [2015] EWCA Civ 833, [2015] All ER (D) 34 (Aug). The position should be covered by an undertaking and the order should make provision for enforcement in the event of non-compliance.
An order for periodical payments may be made in a global sum
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