Alan and Bella are divorced. They have a Financial Consent Order in place which, amongst other matters, orders Alan to pay a lump sum of money to Bella and also pay her spousal maintenance for a period of time.
The transfer of the family home has been completed but Alan has failed to provide the total lump sum to Bella and has also fallen behind with the spousal maintenance payments.
What can Bella do?
Bella can make an application to the Court seeking either:
- A particular method of enforcement; or
- An order for such method of enforcement as the Court may consider appropriate.
Usually, the preferable course of action where a breach of an Order has occurred, is for the applicant to take the option 2, above. This will enable the Court to obtain information as to Alan’s financial circumstances and general position and, from there, the Court will be able to decide what method of enforcement should be followed. Bella will, of course, be required to attend the hearing and tell the Court what she would like to happen. Should Bella already have sufficient information about Alan’s circumstances, she could opt to select a particular method of enforcement at the outset.
If Bella follows the second course of action, then when she makes her application to the Court the Court should issue an Order requiring Alan to:
- Attend the Court at a time and place specified to answer on oath such questions as the Court may require; and
- To complete a financial statement, which will have been sent to Alan with the Order, setting out the date and time when he should appear at the Court.
This financial statement to has to be sent to the Court not less than 7 days before the hearing. The Order requiring these steps must also contain a penal notice. A penal notice is a warning to the person in receipt of the Order that if they do not obey the Order, then they will be in breach and it would then be possible for the person applying for the Order to make application for, in this case, Alan to be committed to prison for contempt of Court.
What enforcement can the Court take?
The various forms of enforcement that the Court can take are as follows:
- The issue of a “Judgement Summons” – This is where the debtor is summoned to Court to explain why they have not paid and, if the Court finds that they have the means to pay but have refused, they can be committed to prison.
- An Attachment of Earnings Order – This is an Order directed to Alan’s employer requiring them to deduct from Alan’s salary certain sums each time he is paid, i.e. weekly or monthly, to satisfy the amounts he owes under the Order.
- A Warrant of Control – This is a Warrant directed to a bailiff to come and seize Alan’s goods and belongings to be sold in order to pay the debt owed under the Order.
- A Third Party Debt Order – Where a third party owes money to Alan, such an Order could be directed against that third party. For example, a bank which Alan had an account with which was in credit is classed as a third party. i.e. the bank holds the money but owes this to Alan. An Order could be made directing Alan’s bank to pay money from his account to Bella.
- A Charging Order – This is an Order to secure the debts owed by Alan against a security, for example, a property that Alan owns. This does not provide for payment of the money but gives security for the same so that if, in due course, the sums outstanding are still not paid, then Bella will be able to take further action in order to secure the sale of the said property/asset and thereby obtain the monies owing to her.
It will therefore be seen that there are various methods of enforcement open to Bella.
One issue Bella would have to bear in mind is that, if she is seeking to recover spousal maintenance payments that are more then 12 months in arrears, she would first need the permission of the Court to pursue Alan for those particular arrears.
Before embarking on any of these enforcement actions, the first step would usually be to warn Alan of the various options that are open to Bella, to allow him to comply with the original Order and avoid further Court action and expense.
What about arrears of Child Maintenance (CM)?
CM is now usually dealt with by the Government Child Maintenance Service, (CMS). Therefore any required enforcement should be taken up by the CMS. The CMS can issue (without a Court Order) a Deductions from Earnings Order requiring the paying parent’s employer to deduct payments from their salary, or a Deductions Order to collect money from bank accounts of the paying parent. The CMS can also apply to the court for a Liability Order, to allow them to take a range of actions, for example, instructing a bailiff to seize assets.
Written by Simon Brown