By Vanessa Lloyd Platt
As divorce practitioners, we are often concerned when parties try to go it alone, dealing with their own divorce matters including drawing up financial settlement agreements to embody the terms that they have agreed. If this is undertaken without the benefit of legal advice, quite often clients can fall into traps of how to enforce the terms that they have agreed.
If one party fails to comply with the terms of a Court Order, and it is a Consent Order in financial proceedings, the other party can take steps to compel their compliance. This is known as enforcement or enforcing the terms of an order.
For enforcement applications to succeed, the method to be pursued will depend upon the nature of the order being enforced. The general enforcement methods include the following:
- If one party fails to comply with an order to pay maintenance to their spouse, then an application can be made for an attachment of earnings order whereby the maintenance can be paid directly from their salary. In this case, the Court will have to determine whether an attachment of earnings order should be made and will direct the company they work for to deduct the salary from their earnings accordingly. Orders for costs can also be given on such applications against the other party if there is no reason why they have not complied with the orders. One must be aware in making such an application that the other party, if they raise the argument that they can no longer afford to pay the level of maintenance, could apply for a variation of the order on production of evidence that they can no longer afford to pay it. This will have the effect of delaying the enforcement of any order.
- If you agree that a lump sum payment should be paid to you and this is not being paid by your partner, you can apply to the Court for a third party debt order whereby the non-paying spouse should have sums deducted out of their bank account to pay an unpaid lump sum paid directly to you. If there is a genuine reason why they could not meet the lump sum payment on time, they may be given a longer time for these payments to be made.
- There are occasions where there has been no reason for the nonpayment of lump sums etc, in which case an application can be made for a Charging Order against the non paying partner’s property. If the sum in question continues to be unpaid, the Charging Order can lead to the property being sold and the proceeds of sale being used to pay the lump sum that remains unpaid. This is quite a draconian order, but one which will be made in circumstances where there has been deliberate delay in complying with an order.
Where one party in a divorce has agreed to transfer a property to the other, or been ordered to do so but fails to sign the necessary documents, application can be made to the Court to enable the Court to sign them in the parties place to allow the transfer to proceed. The Court will often step in to assist in these kinds of cases, particularly where one party is being intransigent. They will also be particularly encouraged to do so if there is a risk of Capital Gains Tax mounting as a result of the non-action of the non-paying party.
If all else fails in aspects of enforcing orders, the ultimate remedy for breaching a Court order is for the Court to impose a term of imprisonment. The prospect of this can sometimes serve as a powerful inducement for the non-paying party to comply with the order.
The moral in dealing with enforcement is that when devising a financial settlement that it is absolutely vital to consider how the order may be enforced in the event that the paying party does not comply.
If you have an order that is not being complied with, whether it is in relation to the setting up of an insurance policy, i.e., a breach of an undertaking to do so or failure to pay maintenance or lump sums, Lloyd Platt & Company will assist in devising the correct method of enforcement and following this through.
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