Last week we looked at the procedure to be followed to get a financial remedy order, setting out the financial settlement on divorce. But getting the order is not necessarily the end of the matter.
The order must still be complied with. What if the other party does not comply with it? What can you do? After all, an order that cannot be enforced is not worth the paper it’s written on.
Well, there are various different ways of enforcing financial orders. Which one is appropriate will depend upon the particular situation.
Enforcing Maintenance Orders
Because of their continuing nature, maintenance orders present special problems when it comes to enforcement. Normally, the amount that the court will enforce is fixed at the date of enforcement, meaning any future non-payment will have to be enforced separately.
For this reason, the most appropriate method of enforcing a maintenance order is by applying for an attachment of earnings order, whereby the debtor’s employer is required to deduct the maintenance and a sum towards any arrears from the debtor’s salary, and pay that to the court, for onward payment to the creditor.
Obviously, attachment of earnings orders can only be made where the debtor is employed. If they are not, then another method of enforcement will have to be used – see below.
Enforcing Orders for Transfer or Sale of Property
It is not uncommon for a party to refuse to obey an order to transfer a property, usually the former matrimonial home, to the other party. In this case, or where the transferring party cannot be found, application may be made for an order that the conveyance or transfer be executed by a district judge, instead of the transferring party.
Where there is an order for sale of property, and one party refuses to cooperate with the sale by refusing to give up possession of the property, then an application may be made for an order that that party deliver up possession to the purchaser or to whomever the court directs, to allow the sale to proceed.
Other Forms of Enforcement
There are a number of other methods of enforcing a financial remedy order. Here are some of the most commonly used:
Third party debt order – An order directing a third party who owes money to the debtor (e.g. the debtor’s bank) to pay the debt directly to the creditor.
Charging order – An order of the court placing a charge on the debtor’s property, to the value of the debt. The debt is therefore secured, and can subsequently be recovered by seeking an order for the sale of the property.
Execution against goods – Requiring the court bailiff to attend the debtor’s premises and seize goods to the value of the sum due. The goods will be sold and the proceeds used to pay the debt.
Judgment summons – This is a procedure whereby the debtor is required to attend court, where he will be examined under oath as to his means and will have to explain why he should not be committed to prison for failure to comply with the order. In practice, any committal order is likely to be suspended on condition that the debtor pay the amount due by a specified date, or by specified instalments.
And finally, what if you don’t know what method of enforcement to use? Well, then you can make a general enforcement application, seeking ‘such method of enforcement as the court may consider appropriate’.
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If you have a financial remedy order that you need to enforce then we would strongly recommend that you obtain the advice of an expert family lawyer. We find you an expert that works with you on our digital platform. For more information, call us on 020 3904 0506, or click here, and fill in the form.
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