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Enforcement of Financial Court Orders
When a court order has been made, whether by agreement or following contested proceedings, ensuring that each person carries out their obligations on time is usually a straightforward process. These obligations could include payment of a lump sum or monthly maintenance, the sale of a property or the transfer of shares in a family business. Sometimes, however, things do not run smoothly and steps need to be taken to enforce a court order.
Our solicitors can help you take prompt, effective action to enforce payment of maintenance arrears or compliance with any other aspect of a financial court order. We can also assist those on the receiving end of enforcement action, including where maintenance payments have become unaffordable due to a change in circumstances.
If you would like to speak to us about any aspect of enforcement, simply call us on 0800 652 5577 or complete our online enquiry form to let us know a suitable time to contact you. We are more than happy to respond to any queries you might have.
In the context of enforcement, a person who owes money is known as a judgement debtor and a person who is owed money is known as a judgement creditor. There are many ways in which the court can enforce payments from judgement debtors and ensure other steps required by a financial court order are taken on time.
Here are some of the methods available:
- Attachment of earnings order - the court can specify that a monthly sum is to be taken directly from an employed judgement debtor’s wages to either satisfy a lump sum payment, maintenance arrears or to meet monthly maintenance obligations going forward
- Third-party debt order - if a judgement debtor is owed money by a third party (e.g. if they have a positive bank balance or are due to receive rental income), the court can require the sum owed to be paid over to the judgement creditor instead
- Charging order - if a judgement debtor owns property, sums of money they owe can be secured against that property, a bit like a secured loan. The money has to be paid to the judgement creditor if the property is subsequently sold. In some cases, the court also has the power to order the sale of a property to realise sums owed under a charging order. Even if the property is not sold compulsorily, the presence of a charging order can put pressure on a judgement debtor and will ensure that the judgement creditor is eventually paid
- Warrant of execution - the court can direct enforcement agents to seize goods from a judgement debtor that can either be held until the debt is paid or sold to realise the sums due
If a judgement creditor is unsure of what is the best method of enforcement, particularly in cases where they do not have up-to-date knowledge of the judgement debtor’s financial situation, they can apply to the court for “an order for such method of enforcement as the court may consider appropriate”. A general application form is submitted to the court and the judgement debtor is required to come to court and answer questions about their financial affairs. On the strength of this, the court will impose the method of enforcement most likely to recover the sums due to the judgement creditor.
The court’s permission will be required to enforce the payment of maintenance arrears that are more than 12 months old. It is therefore essential to take steps to deal with non-payment or underpayment without delay. Sometimes a letter from a solicitor’s firm setting out the position will be all that is required to put things back on track.
The court can also step in to enforce the taking of actions other than the payment of money. Here are some examples:
- Sale of property - where a person has been ordered to sell their home in order to release their former spouse or civil partner from a mortgage and/or realise a lump sum for them, that person may be reluctant to facilitate a sale and may actively block the process. In this situation, the court can order the person occupying the property to give up possession to facilitate a sale
- Signing of documents - the court has the power to sign stock transfer forms, property transfers and other documents in cases where a person ordered to do so by the court refuses to
- Committal for breach of undertakings - sometimes as part of a court order, a person will make a solemn promise to the court to do certain things, such as resign from a family company or put in place life assurance to cover the term of a maintenance order. If a person breaches a promise of this nature, which is known as an undertaking, the court can order them to be fined or imprisoned to make them keep their promise
As with the enforcement of financial obligations, it is essential to avoid delay in taking action to enforce compliance with a court order. In some cases, delay may make an application to the court less likely to be successful.
In general, each party pays their own costs in family court proceedings. However, enforcement applications do not follow this principle and a successful applicant can expect to have their costs paid by the judgement debtor alongside the debt. Orders for costs can be enforced in the same way as lump sum or maintenance payments.
Whenever enforcement action is considered, we will keep a close eye on the likely prospects of success and provide you with a realistic, commercial view on the appropriate course of action, taking into account the projected costs.
Variation of Maintenance Payments
Sometimes a person will find themselves unable to meet monthly maintenance payments for very good reasons. These could include a significant reduction in the payer’s income or the receiving party finding a new, better paid job. In cases like this, the matter may come to a head when the receiving party takes enforcement action against the payer. Action can and should be taken before this happens.
It is possible to agree the variation of a maintenance order when there has been a genuine change of circumstances. If an agreement is not possible, the court can vary maintenance payment and block the enforcement of arrears. However, it is important not to let arrears build up in the first place before taking steps to vary a financial court order.
Proper variation of an order, whether by agreement or following a contested application to the court, is essential to remove the threat of future enforcement action. If you are struggling to meet your monthly maintenance obligations, it is important to take advice sooner rather than later and avoid potential enforcement action.
It is possible to enforce payment of an order made in England and Wales in the courts of another territory (or ‘jurisdiction’). Similarly, our courts are able to enforce payment of orders made overseas. The precise mechanism for enforcement will depend on which other jurisdiction is involved.
Our family law specialists can assist with enforcing English court orders in other jurisdictions (and vice versa), in territories including the Channel Islands, EU member states and beyond.
Why Choose JMW?
The family law department has depth and breadth of experience in enforcing financial orders and defending enforcement proceedings where necessary. We can help you recover arrears of maintenance and unpaid lump sums, ensure compliance with other aspects of financial court orders and deal with requests to vary financial orders in response to a change of circumstances.
Whether your order was made in England and Wales or elsewhere, we can provide timely, cost-effective advice to help you achieve the best possible outcome.