Once you have reached an agreement with your ex-spouse you might believe that is the end of your involvement with the court process. However, what happens if your ex-spouse fails to comply with the terms of the order? What options are available to ensure you receive any monies due to you or to ensure any properties/assets are transferred between you and your ex-spouse as part of any agreement reached?
This blog will explore the options which are available to you in ensuring compliance with court orders made in England and Wales.
Primary considerations
Before any steps are taken to enforce a court order, we need to consider whether the order can be enforced by the court. It is therefore important that before any court order is agreed between the parties and sent to the court for approval that you take specialist legal advice from a family law solicitor as to:
- The terms of the agreement reached and whether they are fair; and
- Whether the court has the power to make an order in the terms sought.
If the court cannot make an order in the terms of any agreement reached, the order will not be capable of enforcement and you will have difficulties in ensuring the terms of the court order are carried out.
Methods of enforcement
There are a number of methods for enforcing court orders and in this blog we will discuss the main routes of enforcement. The most appropriate method of enforcement will depend upon the type of order which you are seeking to enforce. There are three main types of court orders:
- Orders which require one party to pay a lump sum;
- Orders which require one party to transfer property or assets to another party; and
- Orders which require one party to pay maintenance to another party for a set period of time.
This blog will focus specifically on enforcement of spousal maintenance orders made in England and Wales and where both parties reside in England and Wales. There is a different legal process to follow should you wish to enforce a maintenance order against a party who resides outside of the jurisdiction of England and Wales.
Enforcement of capital orders
In cases where it has been agreed that one party will pay a one off lump sum to the other party, but fails to do so within the timescale set out within the order, the court have a number of options available to ensure payment is made.
It should also be noted that for lump sums over £5,000 interest at the rate of 8% per annum will automatically accrue on any lump sums which are overdue.
- Charging order
The court can make an order which requires a charge to be registered against any property which is held by the non-paying party. A charging order can be made not only against a property but also against other assets such as securities (for example government stock or unit trusts).
The charge will mean upon the sale of the property or security, the proceeds of sale will be used to satisfy the charge.
Any charge made pursuant to a charging order will not take priority over any existing charges.
This route is not an immediate route for recovering sums owed and can be a lengthy process. There may be delays with the property being sold or the non-paying party may not be cooperative in ensuring the property is to be sold quickly. In this case it may be necessary for further applications to be made to the court to ensure the sale of the property can proceed.
- Third party debt order
If the receiving party can show to the court that the non-paying party is owed money by a third party, the court can make an order requiring the third party to pay the money due to the receiving party to ensure compliance with any court orders.
This order can only be made against third parties who are located within the jurisdiction of England and Wales.
- Warrant of control
If the non-paying party has assets (such as cars or jewellery) an application can be made to the family court for a warrant of control. This would give the court bailiffs authority to seize and sell assets to satisfy the court order. However, any assets which the non-paying party holds may not be sufficient to discharge any debt owed in full.
Items which are required by the non-paying party to enable them to work or domestic goods such as a washing machine or cooker, cannot be seized by the bailiffs.
- Writ of Sequestration
This is considered as a “nuclear” option and is very rarely used by the court. A commissioner would be appointed to carry out an audit of all assets held by the party who is in breach of the order. Once the extent of the assets is known, the assets would be frozen pending a further court order. Save for managing any business which the commissioners may take over, the commissioners are unable to sell or do anything further with the assets to ensure compliance with the court orders.
This route can be helpful if giving one party certainty as to the assets held by the other party but it is a costly route. In addition, it does not guarantee compliance with the court orders and further applications may be required to ensure monies are paid.
Enforcement of maintenance orders where both parties reside in England and Wales
Parties may agree that one party is to make monthly maintenance payments to their ex-spouse for a period of time. There may be circumstances which arise which mean the paying party fails to make the monthly payments and arrears will therefore start to accrue.
It is worth noting that the court can only recover arrears which have been outstanding for a period of 12 months. If arrears have accrued beyond a 12 month period, a separate application will need to be made to the court for permission to recover arrears which have been outstanding for more than 12 months.
In order to recover any arrears, the court will look to see if they can make an order for a warrant of control or if it is appropriate for Third Party Debt Order or charging order to be made against the non-paying party. However, this does not deal with ensuring compliance with the maintenance order in the future. There are several options available to the court for ensuring compliance with maintenance orders.
- Attachments of earnings order
The court can make an order requiring the employer of the paying party to make regular deductions from the non-paying party’s salary to ensure compliance with the court order. Such an order can only be made in respect of debts arising under a maintenance order.
This route of enforcement cannot be used where the non-paying party is self-employed or where the non-paying party is a member of His Majesty’s forces.
- Appointment of a receiver
In serious cases, and in cases where there is no other routes of enforcement, where the non-paying party has a company which receives a regular income, independent receivers can be ordered to take over the management of the company and ensure payment of any sums due under the terms of a court order. This approach can be helpful in situations where there is a level of distrust between the parties as an independent third party would be appointed by the court to manage the company.
The appointment of a receiver also ensures transparency as to the true income and outgoings of the company.
The downside of this approach is a receiver is akin to an administrator and so their costs for taking over management of a business can be significant and may outweigh the sums to be paid to the receiving party.
Enforcement of transfer of asset orders
In the majority of family cases, there is usually an agreement for one party to retain a property, such as the family home, and for this to be transferred into their sole name.
The court order will provide that both parties will cooperate in ensuring the necessary transfer documents are signed and filed with the land registry to ensure the property is transferred into the sole name of one party.
However, there are circumstances where, after an agreement has been reached, one party seeks to be difficult and refuses to sign the necessary paperwork to effect the transfer. In these circumstances the court has the power to sign the necessary paperwork on behalf of the uncooperative party to ensure the property is transferred into the sole name of the other party. The court also has the power to appoint a solicitor (usually the solicitor of the party who is making the application) to sign the transfer documents.
Continued non-compliance of court orders
In all cases where one party has failed to comply with the terms of a court order, an application can be made to the court to hold one party in contempt of court, the consequence of which would be a prison sentence. However, in most cases this would not achieve the desired outcome of ensuring the court order was complied with but it may act as a warning to ensure compliance with the order going forward.
In addition, should the court make an order during the course of the proceedings, with which one party fails comply, the court have the power to make a Hadkinson Order. A Hadkinson Order prevents the party who has breached existing orders from making any further applications to the court until they have remedied the breach.
It is important to remember that there is not a “one size” fits all when it comes to enforcing court orders and the most appropriate route will depend upon the specific circumstances of your case. Rayden Solicitors are specialists in family law and therefore if you have any issues between your ex-spouse regarding the implementation of a court order, please contact one of our solicitors who can advise you in relation to your specific circumstances.