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My partner isn’t paying me what they are meant to – how do I enforce the order against them?

19th May 2016

The English courts have wide-ranging powers to enforce the orders which they make, however this can only be done on the application of the party that is owed the debt.

The court is able to order the following methods of enforcement:

(a) Writ of Control

This is an order allowing the bailiff to seize goods, either to hold them until the debt is satisfied or selling them to discharge it. The bailiff is not allowed to enter residential property, and is limited in what goods they can remove, with work tools, for example, not being subject to confiscation.

(b) Charging order

The court can order that a debt be secured by way of charge over property or shares owned by the debtor. Once this charge has been made, the creditor can then apply to have the asset sold.

(c) Third Party Debt Order

This is an order requiring any money owed to the defaulting party to be paid direct to the creditor party. This can include compelling the contents of bank accounts (technically a debt owed by the bank to the defaulter) to be paid over to the judgment creditor.

(d) Garnishee order

A garnishee order is an order of the court requiring a portion of a debtors salary to be paid over to the judgment creditor in order to satisfy the debt.

Where a debtor willfully refuses to satisfy an order, they can also be subject to contempt proceedings. If the court is satisfied that they have the ability to make a payment, but are refusing to do so, then the court can punish them with fines and even imprisonment. The courts take contempt extremely seriously, and have been known to impose sentences of up to two years for deliberate refusal to satisfy an order.

How do I enforce my award abroad?

It is possible to enforce awards in foreign countries. How this is done, and how easily will depend on what country the assets are located in and what agreements England has in place with that country.

How do I enforce against assets in Switzerland?

Generally speaking, foreign divorce orders can be enforced in Switzerland, though it is important to note that Swiss banks cannot be bound by foreign freezing orders. To bind assets based in Switzerland, additional orders must be obtained from the local courts.

How do I enforce against assets in the United Arab Emirates (including Abu-Dhabi and Dubai)?

Though in theory the UAE can enforce financial remedy judgments from England and Wales, in practice it is highly problematic. The local courts will not enforce any judgment which is in conflict with public policy, including those which conflict with sharia law. As almost all English divorce judgments do conflict with sharia principles, the courts are unlikely to enforce them.

How do I enforce against assets in the USA?

The precise rules will vary from state to state as the USA has a federal legal system. In most cases, however, it will be necessary to file a suit for enforcement at the local district court. Under the principles of comity, the US courts will, generally speaking, enforce foreign orders that come from a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries.

There is therefore a good chance that a US based court will be willing to enforce a court order made in English financial proceedings.

How do I enforce against assets in France?

France is part of the European Union, and so is subject to European law on the enforcement of judgments throughout the European Union. This means that judgments can be enforced in France without the local court reviewing their substance. It is simply an administrative exercise between the court services in both countries.

That said, the French court can only use its normal powers to enforce an English judgment. A French court can only use its existing powers to enforce a judgment, so if some remedy is not available in France (for example varying a trust) the French court will not be able to effect this.

How do I enforce against assets in the BVI?

Under s.3 of the Reciprocal Enforcement of Judgments Act 1922, orders from an English court may be registered and enforced by a simplified process, unless contrary to public policy. Non-money judgments are not directly enforceable.

Under s 83 A of the Trustee Act, however, trusts based in the BVI are protected by so-called firewall legislation and cannot be varied or amended by foreign orders.

How do I enforce against assets in the Cayman Islands?

In the Cayman Islands judgments can be enforced through the Administration of Justice Act 1920 on the basis of reciprocity, provided that they are not obtained by fraud and are not contrary to Cayman public policy.

With regards to trusts, however, Cayman Islands Trust Law s91 and s 93 set out firewall provisions which expressly exclude trusts from variation under a claim arising from matrimonial proceedings in a foreign country.

How do I enforce against assets in Australia?

Judgments from England and Wales can be registered in Australia under the Foreign Judgments Act 1991. Australia and the UK have a reciprocal arrangement for the enforcement of judgments, and so most judgments for payment of money can be enforced there.

A registration application can be made on an ex parte basis, with the respondent then being served a Notice of Registration. The respondent has 14 days to set aside this notice – if they do not apply in that time, the applicant can proceed to enforcing against the defendants assets. This will allow the Australian courts to use their usual methods of enforcement to enforce the award.

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