I am the administrator for my sister’s estate. We have a court judgement for the payment of arrears of maintenance by her ex-husband who is resident in the Republic of Ireland. This judgement has now been sent by the High Court in Dublin to the Chief State Solicitor for enforcement. Subsequent to her death her ex-husband now has full ownership of a property in Sligo which they both owned as joint tenants. In order to secure this property I now wish to enter either a caution or a judgement mortgage against it on behalf of the estate.My questions are:• Should the submission be made to the District Court? • Are there standard forms available to make the submission to the court?• Where can I obtain the forms?• Will the Chief State Solicitor take this action on my behalf?
1. At the outset, the Chief State solicitor has no jurisdiction or authority over judgments. It is the Sheriff who is the person to whom a judgment is sent to enforce it against the goods of the person concerned. 2. Secondly, you should seek to register a judgment mortgage against the property formerly jointly owned in Sligo. This is the first stage in seeking to have the property sold and the monies realised applied to satisfy the judgment. Registration of a judgment mortgage occurs without a court application. (A caution is not appropriate in this instance as it gives you no rights over the property.)3. A judgment mortgage is a specific type of document, for which there are no standard forms available freely. I would advise you to go to a solicitor and get him to do the registration of the judgment mortgage for you. As this is a complicated area of the law, you are better off do the registration properly. If there is a solicitor appointed to the estate of your late sister, then speak with him/her. The second stage of a judgment mortgage, after it has been registered, is to apply to the Circuit court for an order for sale of the property. As you will need a solicitor (and barrister) to move this application, I would suggest you speak with a solicitor from the outset. The costs of the application will be recoverable with the judgment mortgage. So ultimately, the estate will not be out any money in using the solicitor to do the registration of the judgment mortgage and the application for sale.
The judgement was originally in an English court and is being enforced under the agreement for mutual recognition of court orders. The Chief State Solicitor was instructed by the High Court in Dublin to serve the judgement. Once the judgement has been served do they have any further responsibility for enforcement?
4. This is a different situation. Essentially, the sole function of the Chief state solicitor is to serve the maintenance order of the English court. Once the order has been served by the chief state solicitor's office, then the amount claimed falls due for payment. However, if the maintenance debtor - here your sister's husband - fails to make payment then, you have to initiate proceedings against him for recovery of the money. The Chief state Solicitor does not act to recover the money for you. However, the maintenance order is enforceable in Ireland as if it were a judgment of the Irish court. The legislation dealing with the implementation of the relevant EU legislation in Ireland is SI No. 274/2011 EC (Maintenance) Regulations, 2011 http://www.irishstatutebook.ie/2011/en/si/0274.html. Normally the District Court will have jurisdiction, but if your judgment is a large sum (above €38,000) it may be worthwhile proceeding in the HIGH Court and getting protective measures in aid of your judgment, such an Order for sale of the property in default of payment. 5. Be aware additionally, that if the Order for maintenance made by the English courts was uncontested, then the provisions of EU Regulation 805/2004 and the Order of the English court can be enforced in Ireland without any further need for judicial proceedings. This is particularly useful if you want a judgment mortgage or to attach money standing to your sister's husbands credit in a bank account. Accordingly if the Order was uncontested, if might be useful obtaining a European Enforcement Order certification from the English courts before you seek to enforce it in Ireland. This is something you can go back to the UK court to get if you have not already got it.
Barrister 17 years experience
Thank you, not necessarily the answer that I wanted but clear and to the point and very helpful.
6. Best of Luck with everything
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).