Enforcement: when is a final order not final?
Obtaining a divorce is usually a straight forward process. However, resolving financial issues and/ or issues with children can be more complicated. You will need a divorce and family law specialist to assist. Things can become further complicated in situations where a resolution has been reached either by agreement or (more usually) by the court making an order but one (or both) parties refuse to abide by the terms of that agreement or order.
Enforcement of family financial orders
Where possible a family financial order should provide for the parties to have a ‘clean break’ from each other and to allow them each to move forward with their respective lives. Even if the order achieves this, however, if you have one party who refuses to comply then the parties may remain ‘locked together’. This can cause unnecessary stress and potentially mean that each is continuing to incur legal costs.
What can we do?
At Maguire Family Law we always urge thought to be given as to whether some form of enforcement provisions should be written into the original order, for example, the sale of a property in default of payment of a lump sum. This is not always necessary, proportionate or even possible but it is certainly worth considering when reaching an agreement as it may save time and money in the future.
Indeed the Law Commission is also recommending in proposals published on 14 December 2016 that Judges making final orders should give some consideration to this issue. This proposal may not be endorsed but it certainly seems sensible.
Law Commission Report
The Report also makes a raft of other suggestions in respect of enforcement which is a notoriously tricky and messy area of family law. A full copy of the report can be found here.
In summary some of the other most significant proposals are as follows:
- The appointment of enforcement liaison judges to assist family judges with this specific issue;
- An automatic requirement for the debtor to produce financial disclosure before the first hearing;
- New coercive powers being given to the court to disqualify a debtor from driving or prohibit them from travel outside UK;
- The potential for pension sharing orders to be made as part of an enforcement application; and
- An effective overhaul of the process and clearer rules being set out in respect of that process.
Clearer guidance in the area of enforcement would, in the writer’s view, benefit all and certainly the growing number of litigants in person. There is some concern about how these proposed new proceedings would work and that they may stray into the arena of varying the original order. Care will need to be taken to avoid this as this would only serve to potentially make things less certain for divorcing parties rather than more so.
It remains to be seen which, if any, of the Law Commission’s recommendations the government will take on board. Until then we will continue to make do with the current regime and if you are grappling with any of these issues you should take some specialist family law advice.