It is tempting to think that your divorce is finally over once you have a final order for financial settlement but there are still likely to be further steps to be taken to implement the order. In most cases this is not a problem. But what happens if your ex does not pay the money that is due to you, or does not transfer the property, pension or other assets?
It means starting enforcement proceedings. The options are complex and can be confusing.
Different types of enforcement action include:
- 1.Third party debt order – usually made to stop a judgment debtor taking money out of his or her bank
- 2.Charging order – stops someone from selling their property or certain stocks, shares and unit trusts before the debt is repaid
- 3.Attachment of Earnings Order – creditor applies to the court for an order to take money out of the debtor's wages to repay the debt
- 4.Appointment of receiver – who accepts payments due to the debtor, such as rent, money due under an inheritance, and pays them to the creditor to settle the debt
- 5.Writ of control – enforcing an order to pay money by taking control of goods
- 6.Writ of delivery – an enforcement officer taking control of goods such as a car to be transferred to the creditor under the order
- 7.Judgment summons – gives the court power to sentence the debtor to up to 6 weeks in prison if they don't pay
- 8.Order nominating someone else to sign documents such as a property transfer deed
- 9.Order for possession – forcing someone out of a property so that it can be sold
- 10.Means of payment order – requiring debtor to pay maintenance by a certain method, such as by standing order or through the court
A recent report by the Law Commission identified the following key issues on enforcement of family financial orders:
- 1.The rules are too complex
- 2.The lack of information about debtors
- 3.There are cases where some of the debtor’s assets are beyond existing enforcement powers
- 4.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 a family financial orders but do not take enforcement action as they have the following issues:
- 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
- simply a lack of faith that action will achieve compliance
Key recommendations of the report are:
- Simplify the law, provide a more accessible route and consolidate procedural rules that apply to the enforcement of family orders
- more guidance and information for litigants who do not have a solicitor
- Increasing the obligations on the debtor to provide honest and early disclosure of their financial circumstances and 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, for example, against funds held in a joint account and pensions
- Courts should be able to apply more pressure to debtors who refuse to pay but have the means to pay what is owed to the creditor i.e. the debtor is disqualified from driving, or prevented from travelling out of the country until the judgment debt is settled
"It is worth getting legal advice if you are not receiving what is due to you under an order as often, just the threat of having to go to court again will prompt your ex to comply with the order" says Sally Ward, family law solicitor at Gepp and Sons.
If you require any guidance through the maze of enforcement options please call Sally or any of the solicitors in our family department on 01245 493939 or email email@example.com.
This is not legal advice; it is intended to provide information of general interest about current legal issues.