Leave of the court required to execute a conditional judgment
Property disputes between ex-spouses can be settled by the issuance of a court decision, but this should be conditional and leave it to them to fulfil mutual obligations towards each other. If there is co-operation and good will then each of t
Property disputes between ex-spouses can be settled by the issuance of a court decision, but this should be conditional and leave it to them to fulfil mutual obligations towards each other. If there is co-operation and good will then each of the spouses receives what they have should and both are satisfied.
However, there is a possibility that one of them does not fulfil their obligation or blames the other for not being ready to fulfil theirs or prevents the fulfilment of the other’s obligation. As a result, the issue becomes complicated and it can take years and new legal disputes to be resolved.
It is wiser when resolving property disputes to find solutions that exclude the possibility of a spouse refusing to fulfil an obligation they have undertaken. When the payment of a certain amount is agreed, its payment should not be subject to conditions, such as the mutual and simultaneous transfer of property from one spouse to the other.
The issue is that the monetary part must be enforceable and create a judgement creditor and a judgement debtor. The transfer of assets on both sides can be implemented by agreement of the spouses before the issuance of a judgement or with a judgement and for the monetary part to follow and a stay of execution to be given, as the parties agree.
It is noted that the transfer of real estate between spouses in the context of the resolution of a property dispute is exempted from transfer fees, capital gains tax and/or any other taxes. Between ex-spouses with a court judgement, exemption from the obligation to pay fees and taxes is permitted by law.
Judgement of the Court of Appeal
The Court of Appeal dealt with these topics in its judgement issued in C.A. No. E135/2023, dated November 11. It resolved a long-standing dispute between ex-spouses for the execution of a judgement that was conditional on the payment of €1.000.000 by the husband and accompanied by mutual obligation to transfer immovable property at the same time on the part of both ex-spouses.
The various measures taken by the wife to execute the decision concerning the monetary part were not successful and her applications were rejected at first instance and by the second instance family court, because she did not follow the provisions of O.40 r.3 of the Civil Procedure Rules to secure leave to execute the judgement, since the judgement was subject to conditions.
The wife, guided by the decisions of the second instance family court, filed an application at the first instance court and requested an order for the issuance of leave to execute the judgment that was issued by consent, by which it was decided that the judgment debt was subject to execution and that she was a judgment creditor and the ex-husband a judgment debtor and that the wife was in a position to meet her own obligation.
The court held that the wife’s application could not succeed on the ground that the wife could not fulfil her own obligation, which had to be fulfilled simultaneously with the husband’s obligation, who submitted a memo for legal fees due.
In the context of the wife’s appeal, the court of appeal held that it was not brought to the attention of the court of first instance that when the ex-wife called the ex-husband to the land registry on a specific date for a simultaneous transfer, the property that she owed, according to the terms of the by-consent judgement to transfer, was free of all encumbrances and that she herself had complied with all her obligations.
It also added that the trial court had failed to deal with the ex-husband’s inability to meet the simultaneous obligation to achieve the transfer of a certain property to the ex-wife due to its sale long before.
Therefore, the trial court did not acknowledge that the ex-wife had fully complied with her obligations, while the ex-husband neither appeared nor could in fact fulfil all his obligations. At that point in time, he gave the ex-wife the right to apply to the court for leave to issue writs of execution, since she became a judgment creditor and the ex-husband a judgment debtor, so the court of appeal intervened and issued the order.
George Coucounis is a lawyer specialising in Immovable Property Law, based in Larnaca. E-mail: coucounis.law@cytanet.com.cy, tel: 24818288
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