Whether you have reached your financial remedy order by agreement or following contested proceedings, it is essential each person meets their obligations. But, given relations are likely to be strained, how do you enforce a financial remedy order?
Thankfully it is usually a straightforward process. Each person’s obligations will be clearly set out. They could involve the payment of a lump sum, monthly maintenance, the sale or transfer of property or shares or the division of a pension but each party will know what they need to do and by when.
However, sometimes it doesn’t run quite as smoothly. If this is the case, steps will need to be taken to enforce the financial remedy order.
What should you do if the terms of your financial remedy order have not been met?
The action the court can take will depend on the payment, assets or circumstances involved.
Probably the most common situation is the non-payment of spousal maintenance.
If maintenance hasn’t been paid according of the agreed order, you can usually only ask the court to order the payment of arrears which are under 12 months old. After 12 months the recovery process becomes more difficult. This means that with regards to the question of when a financial remedy order should be enforced, our answer is always ‘as quickly as possible’ but we will look into this in more detail in the second part of this series.
If maintenance hasn’t been forthcoming and your former spouse is employed, you may be able to ask the court to deduct your maintenance payments direct from their wages. This is known as an attachment of earnings order.
Unfortunately, this is not an option if the spouse is self-employed. If this is the case, we would look at other options up to and including bankruptcy.
In addition, if the spouse who has not met their obligations and they own a property, you may be able to ask the court to secure the money you are owed by placing a charging order over the property. This gives you the right to ask the Court to order the property to be sold if you have still not received the money you are entitled to.
If you know your former spouse has a large amount of money in the bank, you may be able to ask the court to order the bank to release this money so that you receive either full or partial settlement for the outstanding amount.
However, sometimes the reason the spouse can’t make the requisite payment/s is out of their control. They may, for example, be owed money by a customer. In this instance you may be able to ask the court to ensure that when the outstanding payment is received from the debtor, it comes straight to you under a third party debt order.
And if monies are still not forthcoming, your last option may be to request a warrant of execution. This enables the court to appoint direct enforcement agents who will seize goods from the defaulting spouse that meet the total value of the debt.
If you are unsure as to what the best method of enforcement is for your specific situation – because, for example, you don’t know your former partner’s exact financial situation – you may wish to consider applying for ‘an order for such method of enforcement as the court may consider appropriate’.
This would involve submitting a general application form to the court who would then tell your former spouse to attend court to answer questions about their finances. The court would then use their answers to assess which method of enforcement would be most likely to recover the money owed.
How do you enforce the non-financial obligations you have agreed?
The court can also step in to make sure all the non-financial obligations set out in your settlement agreement are actioned. These include:
- The sale of the matrimonial home or other properties
- The signing of legal documents (e.g. stock transfer forms and property transfers)
- Honouring promises made to the court (e.g. to resign from a family business, to put life insurance in place for their former spouse or children)
The one thing the enforcement of non-financial obligations has in common with the enforcement of financial obligations is immediate action is much more likely to yield the desired result; any delays could well make reduce the level of success your enforcement action achieves.
Do you have to pay to enforce a financial remedy order?
You will need to be pay to enforcement a financial remedy order, but you are usually entitled to ask the court to recover the costs as long as your former spouse has the money available to pay these and all other costs accrued during the enforcement proceedings.
If you would like one of our specialist family barristers to enforce a financial remedy order for you or your client, please contact us today.