If a party breaches a financial remedy order, an application can be made to the family court to enforce the relevant provisions of the order. Breaching a court order can result in serious consequences, and therefore it is advisable to not simply ignore one. If a party believes that a court order is unfair, or they can no longer afford to meet their obligations, they should appeal or apply for a variation.
If your former spouse is failing to comply with a family court order, it is important to get legal advice as soon as possible. Contact Vardags today for a free initial consultation with one of our expert divorce solicitors.
A party may apply to the court for enforcement by submitting a Form D50K. An application for a specific method of enforcement may be made, or an application for an order for such means of enforcement as the court may consider appropriate. The application should be made to the court where the original order was made.
If a party is applying to enforce arrears, they must apply to the court within 12 months of the arrears being due. Otherwise, the court’s permission will be required to enforce payment on arrears older than 12 months.
There are various methods of enforcement, and the best course of action will depend on the specific circumstances of the case, including:
Attachment of earnings – an order directly requesting a party’s employer to deduct a specified portion of their wages and pay it to the court.
Third party debt order – an order directed at a third party, used in circumstances where they owe money to the party in breach of the order. The court requires the third party to pay the other party directly, instead of the party in breach.
Charging order – an order applied to the party’s property, which means that if they sell or re-mortgage the property, payment can be taken from the proceeds.
Order for sale – an order forcing the sale of property
Writ or warrant of control – an order authorising a bailiff to seize the debtor’s goods, which will then be sold to recover the sum owed
Judgment summons - an order requiring the debtor to appear in court, and in extreme circumstances, may be sentenced to imprisonment for a maximum of 6 weeks
An attachment of earnings order (AEO) directly requests a party’s employer to deduct a specified portion of their wages and pay it to the court.
An AEO is particularly useful where a party has defaulted on maintenance payments. However, an AEO can only be made where the paying parent is in employment. Furthermore, income from self-employment, welfare benefits, and state pension payments cannot be subject to an AEO.
To request an AEO, an application must be made by submitting a Form FE15, as well as a copy of the original order. The court will then serve the application and a Form FE17 on the paying party, who will then have eight days to reply via the Form FE17. This provides the paying party with the opportunity to make an offer of voluntary repayment.
If the party in breach of the order is owed money from a third party debtor, the court can make a third party debt order, which requires the debt to be paid directly to the other party instead. For example, if the debtor spouse is expecting to receive an insurance settlement, the court can direct the insurance company to deduct the sum owed and pay it directly to their spouse. An application for a third party debt order may be made by filing a Form N349.
A charging order may be applied to the party’s property, which means that if they sell or re-mortgage the property, payment can be taken from the proceeds. A charging order itself does not require the party to sell the property, and so it is more a method to secure a debt, rather than enforce it. However, a charging order may be followed by an order for sale. If the property is jointly owned with a third party, then the charging order can only be secured against the debtor’s share of the property.
An application for a charging order can be made by filing a Form FE6, for a charging order over land, or a Form FE7, for a charging order against securities (i.e. stocks and shares). A copy of the original order which has been breached should also be attached to the application. It may be helpful to provide any evidence of refusals made by the debtor to pay, as well as alternative methods of enforcement which have been previously attempted.
The application for a charging order can be made without notice, meaning that the debtor may be unaware of it being filed until they receive notification. First notification may be from the Land Registry, by way of a restriction notice.
An interim order will first be granted, which prevents the party from selling the property before a final order is made. This will typically be handled by the court without a hearing. If an interim charging order is granted, the debtor will have 28 days to object to a final charging order. If an objection is submitted, a hearing will be held, and a judge will consider whether a final charging order should be made. If a final charging order is made, the debtor will have 14 days to request that the decision be reconsidered.
A charging order may also have conditions attached to it. For example, it may set out that the property cannot be sold whilst any children living there are still in full-time education. The interests and welfare of any children living in the property will be a key consideration by the court.
The court may order the sale of a property as part of a financial remedy order under section 24A of the Matrimonial Causes Act 1973. However, an order for sale can also be utilised by the court to induce compliance from a party in breach of a court order, as per Amin v Amin [2017] EWCA Civ 1114.
An order for sale to enforce a charging order may be made as per Part 73.10C of the Civil Procedure Rules. An application for an order for sale can be made by any party who has obtained a charging order over the relevant property.
Where there are children under the age of 18 or in full-time education living in the property, an immediate order for sale is less likely. Another option may be to provide for a deferred sale.
A warrant of control authorizes bailiffs to seize the debtor’s goods, which will then be sold to recover the sum owed, as provided by section 62 of the Tribunals, Courts and Enforcement Act 2007. Specific goods up to a value of £1,350 are exempt from seizure, including any equipment necessary for use in the debtor’s business, such as tradesperson tools or a laptop. Furthermore, only goods owned or jointly owned by the debtor can be taken. Goods which are proven to exclusively belong to the debtor’s partner or children cannot be seized.
A judgment summons requires the debtor to appear in court, as set out in the Debtors Act 1869. Where the debtor has, or has had, the means to pay but refuses or neglects to do so, they may be sentenced to prison for a maximum of six weeks.
Given this, judgment summons orders are understandably rare. As per Ansah v. Ansah (1977) 2 All E.R., these orders are “remedies of last resort; in family cases they should be the very last resort.”
An order for a judgment summons may only be made where the debtor has failed to comply with an order for the payment of money, such as spousal maintenance or a lump sum payment. An application can be filed by submitting a Form D62. If the order is issued, it must be served on the debtor at least 14 days prior to the hearing.
As held in Prest v Prest [2015] EWCA Civ 714, the burden of proof is the criminal standard (beyond all reasonable doubt), rather than the civil standard (balance of probabilities). Therefore, findings made in previous financial remedy proceedings cannot be relied on, as they were determined on the civil standard of proof. Similarly to other criminal proceedings, the debtor must be informed of their right to remain silent. The debtor also cannot be compelled to give evidence.
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