Enforcement

Reaching an agreement on divorce in relation to the division of assets can be a long and difficult process.  This makes it even more stressful where a financial agreement has been reached or a final order has been made by a court but one party refuses to comply with that order or financial agreement.  The other party is therefore left with the problem of how to enforce it.

Enforceability has long been an issue which has plagued family lawyers and it is something which should be considered as part of any financial arrangement or settlement.  For example, consideration should be given as to whether the an agreement or order should provide for a sale of a property in default of a party complying with their obligations to release somebody from a mortgage or pay a lump sum.  By including this in the order the parties can make enforcing their agreement a little easier.

On the 11 March 2015 the Law Commission published a consultation paper on the enforcement of family financial order which they had been told were “hopelessly complex and procedurally torturous”.  The closing date for the consultation is 11 July 2015 and further details can be found here.

The key questions appear to deal with the following:

• how to get the relevant financial information required;
•  how the current enforcement procedures can be improved and streamlined; and
• whether there should be coercive methods of enforcement employed where a debtor will not pay as opposed to cannot pay and what those should be?

It is an important point to make that in relation to financial orders we are talking about orders in relation to property, lump sums, pensions and spousal maintenance (i.e. a payment from husband to wife) and not child maintenance.  In limited circumstances child maintenance may be covered but usually this would be dealt with through the Child Maintenance Service (formerly CSA).  They have their own powers of enforcement and if you have queries about enforcing child maintenance then you can find out more information about their powers at: https://www.gov.uk/child-maintenance/overview

Enforcement can be made even more difficult where other jurisdictions are involved either because a property is situated overseas, one party is overseas or you are trying to enforce a foreign order in this jurisdiction.  We have previously blogged about REMO (Reciprocal Enforcement of Maintenance Orders) and that blog can be found here.  The rules are complex and what the English courts can and cannot do depends on the nature of the order you are seeking to enforce and which jurisdiction it was made in.

Overall enforcement can sometimes be overlooked in the quest to get a final order or reach a settlement but it should not be forgotten.  The case of Young –v- Young was reported in the press at length and ultimately Mr Young fell to his death last year in what still appear to be mysterious circumstances.

There were no less than 65 hearings in this case and the husband, Scot Young, largely refused to comply with most of the court’s orders, including an order that the he pay to Mrs Young maintenance pending suit of £27,500 per month plus rent and school fees.  He made no payments whatsoever and by the time the matter reached the hearing in November 2013 the outstanding arrears under that order were just short of £1.3 million excluding the rent and school fees.   There will always be parties who default like Mr Young, whether wilfully or not, and it is important that as much as possible is done to avoid this.