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Recitals, indemnities and third-party orders: overturning old orthodoxies of orders
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In financial proceedings can the family court order one party to indemnify the other for various debts and liabilities? Can it order one party to make payments to a third party? If it can’t such indemnities and third-party orders have to be in recitals agreements or undertakings. They cannot be in the substantive part of the financial order.
This issue has very probably resulted in more draft consent orders being returned by the family court for amending than any other drafting issues.
The reason invariably given was that the court can only order in a conventional financial remedies order those matters set out in MCA 1973 ss 22-24: primarily periodical payments lump sum and property transfer to spouse or child together with the relative newcomers of pension sharing pension attachment legal services orders etc and the rare 'exotics' of secured provision and variation of certain settlements. Indemnities between the parties was not...
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