Where a party to financial remedy proceedings fails to comply with a final order, there are numerous ways in which the order can be enforced. The rules relating to the enforcement of orders in family proceedings are found in Part 33 of the Family Procedure Rules 2010.
Where one party has failed to comply with the terms of a financial remedy order, there is no automatic consequence, and it is up to the wronged party to commence enforcement proceedings by making an application to the Court. The applicant can apply to enforce the order by asking for a specific method of enforcement or by making a general application for enforcement asking the Court to decide which type of method is appropriate. This latter type of application is most common and is to be made on a Form D50K. Prior to the application, it is prudent to contact the defaulting party and remind them of their obligation to comply with the order of the Court in an attempt to resolve the matter. If the Court finds that there has been a breach, then, in most cases, the Court will enforce the order. The Court might direct that the person who has made the breach be required to implement the order by a certain date. If that party still continues to breach the order, ultimately a Court has the power to impose a fine or even imprison the breaching party.
The Court can order imprisonment or impose fines on a party who is in breach if they are found to be in contempt of Court. A contempt application can be made in accordance with the Family Procedure Rules 2010, Part 37. In order to make an application, it is required to show that the order has been breached, and that the breached order included a penal notice.
Enforcement of a financial remedy order for types of conduct other than making a payment
Where the non-compliance relates to lack of co-operation with the transfer or sale of a property, the Court can be asked to enforce the terms of the order in the following ways:
If the sale has been ordered to be conducted jointly by the two parties, the Court can order instead that the sale be conducted solely by one party. The Court can also order the occupier of the home to vacate the property to enable the sale.
The Court can order a nominated person, such as the judge, to sign the deeds of sale and transfer the property on behalf of a party.
Methods of enforcement for the payment of money
Attachment of earnings order. If the debtor is employed, the Court can order that sums be deducted from the debtor’s wages by the employer before they are paid to the employee, to be paid directly to the creditor. An application of this type can be made in accordance with Part 39 of the Family Procedure Rules 2010.
Third-party debt order. If the debtor is owed money from a third-party, an order can be sought that the third-party will pay this directly to the judgment creditor. This application can be made in accordance with Part 72 of the Civil Procedure Rules 1998.
Charging order. The sums owed can be secured by imposing a charge against the debtor’s interests in land or other assets.
Warrant of control. The Court can order to have the debtor’s goods and chattels seized and sold in order to make the payment to the judgment creditor.
The appropriate method of enforcement therefore depends upon the debtor’s financial situation. The creditor may have insight into the debtor’s financial situation, such as their employment status or asset ownership, which would aid them in determining which method of enforcement would be most appropriate. For example, an attachment of earnings order may be sought if the creditor knows that the debtor is paid regularly due to their employment. If the debtor’s financial information is not readily available to a creditor, they can apply for a Court order to obtain the information (an order for disclosure). Notwithstanding, it may be best to make a non-specific application for enforcement. The Court will ask the debtor for evidence of their finances and will then elect the appropriate method.
Enforcement of a financial order concerning the payment of maintenance
The Court can enforce maintenance arrears dating up to 12 months. It is therefore advisable to apply promptly for enforcement in such matters. However, if this time limit has passed, it is possible to make a separate application to the Court for permission to enforce payments that are more than 12 months late. If it is anticipated that issues with payments will persist, the creditor can seek for the maintenance payment to be capitalised i.e. asking that it is instead paid as a one-off lump sum.
Costs of enforcing a financial remedy order
Awarding costs in such matters is at the Court’s discretion. If the Court finds that there has been a breach, then the person who is in breach can face an order for costs. This can cover the legal costs of the other party.
When an order will not be enforced
There are occasions where the Court may decide that an order will not be enforced. Where the party who is in breach is unable to meet their obligation(s) according to the order, the Court is unlikely to enforce the order. An example would be where maintenance payments have been missed because of the loss of employment. The Court may allow time for the party to regain employment and may order for the missed payments or arrears to be paid over a reasonable period. Variations must be recorded in the order.
For more information about our family finance team please contact clerks@becket-chambers.co.uk