Many client will instinctively want a financial “clean break“, following the conclusion of divorce proceedings. In this blog, we consider what happens if your former spouse does not pay the money due to you, or does not transfer their property, pension or other assets as ordered by the court, together with the enforcement options open to you.
The first port of call should always be to try and establish if there is any reason for non-compliance with the terms of the order, in order to establish if an agreeable arrangement can be made. For example, issuing court proceedings because a remortgaging transaction is delayed by 24-48 hours may be considered disproportionate. If you feel that the payment will be made within that 48 hour period, do you need to use a sledgehammer to crack a walnut? Ultimately, if your former partner will not comply with the order, enforcement proceedings should be brought against them. The options can be overwhelming and complex. Different types of enforcement action include:
- Third party debt order – usually made to stop a judgment debtor taking money out of their bank
- Charging order – stops someone from selling their property or certain other assets before the debt is repaid
- Attachment of Earnings Order – creditor applies to the court to take money out of the debtor’s wages to repay the debt
- Appointment of receiver – who accepts payments due to the debtor and pays them directly to the creditor to settle the debt
- Writ of control – enforcing an order to pay money by taking control of goods
- Writ of delivery – an enforcement officer taking control of goods to be transferred to the creditor under the order
- Judgment summons – gives the court power to sentence the debtor to prison if they don’t pay
- Order nominating someone else to sign documents – such as a property transfer deed
- Order for possession – forcing someone out of a property so that it can be sold
- Means of payment order – requiring debtor to pay maintenance by a certain method, e.g. standing order or through the court
- The rules are too complex
- The lack of information about debtors
- There are cases where some of the debtor’s assets are beyond existing enforcement powers
- The lack of means to apply pressure to debtors who can, but will not, pay
Many individuals are not receiving what they are owed under financial orders but do not take enforcement action. They often feel that they have a lack of understanding of the system, a feeling that they need legal representation that they cannot afford, concerns about their relationship with the debtor, or perhaps, simply a lack of faith that their action will achieve compliance by the debtor.
The Law Commissions report from December 2016 recommends:
- Simplification of the law, to provide a more accessible route and consolidate procedural rules that apply to the enforcement of family orders.
- More guidance and information for thosewho do not wish to engage a solicitor.
- Giving the courts wider powers to obtain information from third parties.
- Making it harder for the debtor to hide assets and including assets that currently cannot be enforced against, e.g. against funds held in a joint account or pensions.
- Allowing the courts to apply more pressure to debtors who refuse to pay but have the means to pay e.g. the debtor is disqualified from driving, or prevented from travelling out of the country until the judgment debt is settled.
Serving Bedford, Northampton and the surrounding villages, our lawyers can help you with all your family law and separation matters. If you want to speak to one of our specialist solicitors about your matrimonial finances or enforcing an existing order, contact us on 01234 889777 or firstname.lastname@example.org and talk to us today.