Most people readily comply with financial orders made by the court, whether the order has been negotiated by agreement or made by a Judge following a contested hearing.
However, if you find that you need to enforce a financial order (such as for maintenance, payment of a lump sum or transfer of an asset) because your spouse refuses to comply with it, there are a wide range of remedies available to you, which include:
Attachment of earnings order
This will require your spouse’s employer to deduct payments from their salary at source. It is most useful for enforcing unpaid maintenance orders.
Third party debt order
Where you are owed money by your spouse, you can apply to the court for an order requiring any people or institutions (third parties) who owe money to your spouse to pay it instead to you. Third party debt orders are often made against banks at which a defaulting spouse has an account. The order freezes their account and requires the bank to pay sufficient funds from the account to pay off the amount owing to you under the order.
This is a procedure by which a defaulting spouse is cross examined before a Judge and, if they fail to explain satisfactorily why they have not complied with the court order, they can be sent to prison. However, the impact of the Human Rights Act 1998 means that the same standard of proof and evidential rights as in criminal trials applies.
Other forms of enforcement
There are also other forms of enforcement less commonly used. These include sequestration (under which the assets of the defaulting spouse are seized and placed under the control of a sequestrator appointed by the court), bankruptcy (under which the defaulting spouse is made bankrupt, though matrimonial orders are not provable in bankruptcy, oral examination (whereby the defaulting spouse is required to attend court and be examined by a court official so as to disclose details of their financial position) and registration in the Family Court (whereby the order is registered in a Family Court which then takes over responsibility for enforcement of the order).
Enforcing an order abroad
It is sometimes necessary to enforce orders overseas. A variety of conventions exist which provide for the registration, recognition and enforcement of maintenance orders made in this country abroad and vice-versa. This is known as reciprocal enforcement. Under some treaties maintenance is defined purely as periodical payments. Under others, it also includes capital lump sums. The reciprocal enforcement proceedings available in each case depend on the terms of the convention or other arrangements in place between this country and the other country concerned.
In some cases, the foreign court has a right to vary the order on the application of the defaulting party. Pursuant to some conventions, variation by the foreign court is not possible.
In the absence of reciprocal enforcement arrangements, it is necessary to commence a fresh civil action in the court of the country concerned, seeking enforcement of the English judgment. Enforcement by this method is generally limited to enforcement of lump sum or costs orders. These proceedings are generally speaking not available for maintenance orders, because such orders are liable to retrospective variation by the English court on the application of the defaulting party, if the court considers that it would be unfair to enforce the order because of a change of circumstances.
Why Dawson Cornwell?
Deciding the best way to enforce orders for Divorce financial settlements and their timing may be crucial to the success of your enforcement proceedings. It is essential also to balance the cost of the enforcement proceedings against the amounts owed and the likely prospect of recovery. We will help you make those decisions and issue proceedings as cost effectively as we can.