You’ve separated, formalised that separation, done the necessary paperwork to dissolve your civil partnership or to get a divorce (if needed), and you now have your financial order. Congratulations! It’s been a long road, but now, fingers crossed, it is all resolved. Ready for the rest of your life.
But wait, you haven’t received your money, or the property or the pension. Or you’re not getting the maintenance payments. How do you make sure that you get the financial provisions to which you are entitled under the financial order?
Most of the time the final financial order is the end of the road for dispute and litigation; payments are made and everyone can move on. But sadly in some cases the paying party simply will not part with the money or assets which they are due to pay or transfer. Please rest assured, there are options available and the English Family Court has robust powers to ensure compliance with Court orders and financial obligations, be they domestic orders or overseas orders.
For Court orders made in England and Wales, there are several direct streamlined routes to enforcement available which I will come to below under Domestic Enforcement. If you have an order made in another UK jurisdiction (including Scotland and Northern Ireland) or overseas, there are enforcement options in England for you too.
UK Orders
Financial orders made in other UK jurisdictions can be registered and then enforced in England under either the Maintenance Orders Act 1950 or the Civil Jurisdiction and Judgments Act 1982.
An order from, say, Scotland, can be registered in England by way of an application to the Court in England. The order is then treated as if it was made in England and can be enforced in the ways detailed below under Domestic Enforcement.
Overseas Maintenance Orders
Maintenance orders made in EU member states in proceedings which were started in that country prior to 11pm on 31 December 2020 can be automatically recognised and enforced in England under the EU Maintenance Regulation. This regulation remains in effect post-Brexit.
The government of the origin country must facilitate the transfer of the order to England where the Reciprocal Enforcement of Maintenance Orders (REMO) department of the UK government will process the order and will facilitate enforcement action.
For maintenance orders made in non-EU member states or in members states following-on from proceedings commenced after the above deadline, the route to transmission and enforcement depends on whether there is an appropriate international treaty in place between the UK and that country.
The most common route for transmission and enforcement is under the 2007 Hague Maintenance Convention. There are 43 signatories to the Convention which is designed to facilitate the international enforcement of maintenance obligations; so that an order made in the USA for example, can be transferred to England and enforced here in much the same way as I have described above.
But not all countries are members of the EU or the 2007 Hague Convention and so specific guidance and legal advice should be taken. There are a number of multi-lateral and bi-lateral treaties and agreements in place between England and several overseas countries and so it is a matter of identifying what treaty to rely upon and then taking action to transmit the order to England, ready for enforcement.
By whichever route the overseas order reaches these shores, the English Court has a wide range of enforcement powers, as I will discuss below under Domestic Enforcement.
Property and Other Orders Made Overseas
This is less straight-forward than maintenance orders however there are, again, a number of international instruments in place to facilitate the transmission and enforcement of an overseas financial obligation alongside domestic legislation including the Married Women’s Property Act 1882, the Matrimonial and Family Proceedings Act 1984 and the Trusts of Land and Appointment of Trustees Act 1996.
Whether it is an obligation to pay a lump sum of money, to convey a property located in England and Wales or to transfer a pension, there is (almost) always a mechanism which can be used to make sure you get the money or asset to which you are entitled. Our role as specialist family lawyers is to talk through with you the best route to success.
Please take specialist advice before seeking to enforce. Ideally, please seek specialist advice before finalising the details of the overseas order. Our guidance at an early stage can often help when drafting the overseas order to give you the best chance of enforcing that order in England.
Domestic Enforcement
Whether you have an English, UK or overseas order, there are various powers available to you through the English Family Court to ensure payment. These include:
- An attachment of earnings order – essentially an order directed to the paying party’s employer which re-directs a portion of their income to you;
- A third party debt order – as with above, an order directed at someone other than the paying party. The order requires the third party to pay funds owed to the payer to you instead. This can include an order directed to a bank with which the paying party has an account;
- A warrant of control – an order authorising bailiffs to seize money or goods from the paying party to be used for payment;
- A charging order – a charge can be applied to the payer’s property to ensure that if it is sold or re-mortgaged you will be paid from any proceeds;
- A judgment summons – which can lead to imprisonment if the payer continues to neglect their financial obligation.
The Court has wider powers still to make sure payment is made and this is just the main items on the menu.
Enforcing English Orders Overseas
It is a two-way door which operates on enforcement. Just as the English Court will enforce an overseas order, there are a bounty of options available to you if you need to enforce your English Family Court Order in another country.
Please speak with one of our specialists who can help you to navigate the options available and who can put you in touch with an overseas lawyer to start the process.
If the issues in this blog affect you, please do contact us to discuss how we might be able to help.
