Family financial orders are made by the court for the transfer of property or payment of money between the former partners after a divorce.
They may also be made between parents for the benefit of their children, regardless of their marital status.
If the payment specified in the order is not paid, the judgment creditor will need to take enforcement action. This can be via a number of means, such as:
- High Court writ of control (or a county court warrant)
- Charging order
- Attachment of earnings order
- Third party debt order
Making enforcement more effective, accessible and fair
The Law Commission published its report on the consultation into the enforcement of family financial orders at the end of 2016.
Their data shows that non-compliance with these orders is a problem, with an average of 4,200 enforcement cases each year, amounting to £15 - £20 million unpaid annually.
Their report includes a number of recommendations to make enforcement more effective, accessible and fair.
Improving the process and management of enforcement cases
The report recommends:
- That judges consider enforcement when making an order, and what terms should be included, and that they note a summary of their main findings regarding the debtor’s assets on the court file
- Appointing enforcement liaison judges to help build enforcement expertise in their family judge area and assist with complex cases
- Developing a set of standalone procedural rules for the general enforcement application, rather than the current situation where parties have to cross-refer between the Family Procedural Rules and the Civil Procedural Rules
- Requiring the debtor, under these new rules, to provide financial disclosure before the first hearing so that the creditor and court can consider the appropriate enforcement action at that hearing and make an enforcement order
In addition to the new rules mentioned above, the report also recommends the development of a new enforcement practice direction (which will be particularly helpful to litigants in person), as well as better guidance for litigants in person, giving information on enforcement at the time that the family financial order is made.
The report recommends the creation of a new enforcement financial statement, for disclosure of the debtor’s circumstances. They would also like the court to be able to obtain information from other sources, including the Department for Work and Pensions, HMRC, credit reference agencies, banks and building societies, pension providers and Land Registry. However, the creditor would be given clear guidance on what would constitute misuse of this information on their part.
Bringing more of the debtor’s assets within the reach of the court
The report wishes to make three types of asset more accessible to clear the debt:
- The debtor’s pension - via a general enforcement application, so this can be considered in the context of all the debtor’s assets
- Funds held in joint accounts - via a third-party debt order, but only against those funds paid in by the debtor. This would be a change to the current rules where third party debt orders may only be used against a joint account where all account holders are debtors for the same debt
- Money that will become payable to the debtor in the future. This would mean that the third-party debt order would no longer be limited to the amount in a bank account at the time the order is enforced, but would apply for future payments on a periodic basis, for example monthly. This would be particularly helpful in the case of self-employed debtors
More effective coercive orders
These apply when the court is satisfied that the debtor can pay but won’t. The report recommends the introduction of two new coercive orders: to disqualify the debtor from driving, or to prohibit them from travelling outside the UK.
Creditors with a family financial order would undoubtedly benefit from more information about the enforcement options currently available to them – I would doubt that many such creditors are aware that they can use High Court enforcement, for example.
These recommendations would appear to make the process simpler and more understandable for litigants in person, as well as making it easier to obtain payment after the stressful process of divorce.
David is an authorised High Court Enforcement Officer and our Director of Corporate Governance