Enforcement of orders

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. In some cases, however, steps have to be taken to make one of the parties (the defaulting party) obey the order. The courts have a wide range of remedies, which include:

Attachment of earnings order. This type of order requires the defaulting party’s employer to deduct payments from his or her salary at source. It is often used as a way of enforcing maintenance orders.

Charging order. This type of order gives the person enforcing the order a charge over one of the defaulting party’s assets for the amount due. Assets that can be charged include houses and shares. Once a charging order has been obtained then an application can be made to the court for the asset to be sold so that debt can be paid off out of the proceeds of sale.

Committal. The court has the power to commit a defaulting party to prison for failing to obey a court order. However, committal proceedings cannot be used to enforce payment of money. They can only be used to enforce performance of an order or undertaking to perform a specific act (such as to transfer a property or a life insurance policy or make a child available for contact).

Execution of instrument. The Judge has the power to sign an instrument (i.e. document) if the defaulting party refuses to do so, for example, if the court has ordered that a property be transferred but one party refuses to sign the transfer.

Third party debt order. The court can order people or institutions who owe money to the defaulting party (the third party) to pay it instead to satisfy a debt owed by him/her under a court order. Usually third party debt orders are made against the bank at which the defaulting party has a bank account. The order freezes the account and requires the bank to pay sufficient funds from the account to settle the debt.

Judgment summons. This is a procedure by which a defaulting party 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.

There are also other forms of enforcement less commonly used. These include sequestration (under which the assets of the defaulting party are seized and placed under the control of a sequestrator appointed by the court), bankruptcy (under which the defaulting party is made bankrupt though matrimonial orders are not provable in bankruptcy, oral examination (whereby the defaulting party is required to attend court and examined by a court official so as to disclose details of his financial position) and registration in the Magistrates Court (whereby the order is registered in a Magistrates Court which then takes over responsibility for enforcement of the order).

It is sometimes necessary to enforce orders overseas. A variety of conventions exist which provide for the registration 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 many cases, the foreign court has a right to vary the order on the application of the defaulting party. However, in the countries of the European Union and other European countries the judgment is fully transportable. This means that it may only be varied, if at all, by the English court and the courts of the other country may not refuse to recognise it on any ground.

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.