Methods of enforcement in financial remedy cases are procedurally complex and what follows, in this blog, is a brief overview of enforcement methods. Methods will vary depending on whether the case involves foreign assets, freezing injunctions, etc.
Any financial order that has been given should first of all be clear in its terms. Orders containing areas of doubt or capable of being misinterpreted are more likely to find themselves the subject of enforcement proceedings. It is imperative if you are given a financial order in matrimonial proceedings that you understand fully the terms of the order as going back to Court for enforcement will, in itself, cost money and cause further stress. Obviously, if you have both agreed to the contents of the financial order, it is far more likely that each person will abide by the contents of the order. In the absence of agreement, it is important that you appreciate the precise effects of the order and that the order is drafted carefully to avoid the ambiguities and misunderstandings that have been mentioned previously. Therefore, one way of avoiding enforcement proceedings is to understand precisely what is contained in the financial order and what it means for you and what steps need to be taken in order to comply with the order.
It is also important to understand that any delay in enforcement of any financial order may cause problems in itself, for example, the value of assets may change, such as the matrimonial home.
It is unfortunate, but many financial orders find themselves the subject of enforcement as a result of misunderstandings and ambiguities. If further consequential orders are necessary as a result of one person’s failure to cooperate with the terms of a financial order, the other person can make an application to the Court for enforcement proceedings. However, the Courts’ powers are limited to implementation of the original financial order and not varying the order.
Many financial orders contain undertakings. An undertaking is a legally binding promise to the Court and if that undertaking is broken, the person who is to benefit from the undertaking can apply to the Court for the other person, who is in breach of the undertaking, to be punished by the Court and even to be committed to prison. In most cases it is possible to enforce undertakings of a financial nature in this way.
Where an order involves the payment of money, the person who is to receive that money may make a general enforcement application to the Court and seek “such method of enforcement as the Court may consider appropriate”. The person who owes the money will be ordered to attend Court and the Court will then conduct a hearing in order to establish the best method of enforcing payment. Any such application may also include a request that any money owed can include a claim for interest.
Where the financial order is for the payment of a sum of money, there are a number of enforcement methods available to the Court. At the Court hearing, the nature of the financial order and the financial circumstances of the person who owes the money will be investigated to decide on the best way forward. There are a number of options:
- If the person who owes the money also owns other property such as a house or shares, an application can be made for a charge to be imposed over those assets. If it relates to land, a caution or notice can be entered at the Land Registry to secure the position until payment is made.
- If the person who owes the money is also owed money by a third person, an application can be made for a third party order. For example, if the person who owes the money has money in a bank account then an order can be made which requires the bank to retain a specified sum of that money until the Court decides if the money is to be paid.
- A warrant of execution can be used to secure the possession of a valuable asset.
- Attachment of earnings order can be used if the person who owes the money is in employment. The Court can order a deduction from earnings. This method can also be used to secure the deduction from a pension. However, if the person who owes the money gives up employment, this may prove difficult.
- A receiver can be appointed to enable funds to be obtained from the person who owes the money.
- If the person who owes money is still in the course of legal proceedings, his participation in those proceedings can be limited.
- Lump sum orders and costs orders are now also provable within bankruptcy proceedings.
Where an order has been made for the payment of maintenance (as opposed to a lump sum), the person who is owed the money must move quickly because the general rule is that arrears of maintenance will not be enforced if they are more than 12 months old.
Transfer of Property
If the order is for the transfer of property such as a house or other property owned by the debtor, the party owed the money can ask the Court to transfer property into their name and to execute the documents to put into effect that transfer.
If there is a real possibility that the party who owes the money will attempt to frustrate the enforcement proceedings, an order can be made to freeze certain assets to ensure that enforcement proceedings cannot be frustrated by the actions of the person owing the money.
The method you choose to enforce a financial order will depend upon your circumstances. For example, an attachment of earnings order can only be used in circumstances where the person who owes the money is in steady employment. A warrant of execution is only suitable where there is a valuable chattel of some description. Similarly, third party debt orders are only suitable in circumstances where the person who owes the money has funds, for example, in a bank account. Finally, contempt of Court proceedings for failure to comply with a financial order are only used as a last resort (imprisonment). It is also unlikely to be used on the first occasion of enforcement. These measures are more usually used where one person has flouted Court orders on numerous occasions.
Further complications arise where the person who owes the money moves abroad. It is possible, in many circumstances, to register and enforce an order of a financial nature in the country where the person who owes the money has moved to. However, this is a complex area and reference has to be made to the relevant reciprocal enforcement orders and conventions that have been agreed between various countries.
This article clearly demonstrates that enforcement is primarily a matter of returning to Court once there has been some breach of the agreement made in the original financial order. This can often cause delay and difficulties combined with further stress to the parties concerned. To avoid this situation, it is important that you seek the advice of a Solicitor when agreeing a financial order in the hope of avoiding enforcement proceedings. A Solicitor will be able to carry out the appropriate checks with you that the financial order is both acceptable and clear to avoid misunderstandings and ambiguities. This, hopefully, avoids the need for enforcement entirely.
Should you need confidential advice, please do not hesitate to contact one of our family team who is able to offer a free initial consultation to assist you in making any financial decision or arrangements.
Warren’s Law & Advocacy
Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.