Divorce and enforcement Q&A with Andrew Smith

One topic that I regularly get asked about is around 'complying with divorce orders', so I thought it would be useful to pull together a number of frequently asked questions into one simple blog post.

It depends what sort of Order you have. Financial Orders on divorce can be made up of many different factors such as property, maintenance, pensions etc.

The method of enforcement largely depends on what the original Order says about the particular asset. The first thing to do is check your original Order.

A lump sum Order is often linked to the transfer of a house from joint names into one person’s name. If this is the case and the house has not yet been transferred then court proceedings can be ‘reopened’ to try and force a sale of that property in order to release the lump sum from the eventual sale proceeds. If the lump sum is not linked to a property transfer there are other options available to you, but again it depends on what your Order says.

Firstly, it is important that you should not delay in seeking advice. The court will require an additional application for ‘leave’ to enforce maintenance payments which are more than a year in arrears. You should therefore keep up-to-date with the payments and take action sooner rather than later if they continue to be unpaid.

You can obtain Orders which include bailiff seizure of goods; charging Orders against properties; third party debt Orders and Orders for attachments to earnings. In some circumstances an application can also be made for the non-payer to be committed to prison, although it will need to be proved that they have had the money to pay and that they have refused or neglected to pay it.

You are able to make an application to register your Order in another country to attempt enforcement in the jurisdiction of that country. Likewise, you can register Orders here which were made in other countries. It does depend however on the nature of the Order and the particular country involved.

If your court Order was made on or after 8th December 2008, then it will have a ‘Warning Notice’ attached to it. This provides that the person who should be allowing the contact may face sanctions if they are not complying with the Order. These sanctions include being made to pay a fine; do some unpaid work; complete a specific piece of work (for example attend a Parenting Information Programme course) or even be sent to prison.

You will need to apply to the court to enforce the Warning Notice first and then the Court will address whether or not any of the sanctions are appropriate to your particular circumstances. If your Order was made before December 2008 then you can apply to attach a Warning Notice to the Order, which you will then apply to enforce.

Enforcement is a complex and technical area of family law which is highly dependent on the type of Order you have and the particular facts of your case. There is no ‘catch-all’ solution and so you should in all circumstances seek advice and assistance from a family solicitor before making an application to Court.

For more information on divorce and enforcement of orders, or any other family law based issue please contact our family law team on 0113 201 4900.

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