The Law Commission has published a consultation paper on the enforcement of family financial orders in England and Wales. It describes the current law as opelessly complex androcedurally tortuous
The Law Commission will consider the extent to which reform could make the law more effective. It will not consider how much people should have to pay, but how to ensure payment is made once an order is made. It will not consider the enforcement of child maintenance which falls within the scope of the Child Maintenance Service.
The Consultation will take into account:
- The importance of ensuring that the debtor complies with family financial orders; often an order is made to meet financial needs and if not paid, can lead to real financial hardship.
- The need to recognise the difference between those who can pay and those who refuse to pay.
- Ways of putting pressure on those who have the ability to pay but who choose not to pay.
The current methods of enforcement are complicated. There is a basic requirement that an application for an order to enforce a financial order must be made on a notice of application accompanied by a statement which must state the amount due and show how that amount has been calculated. The statement must be verified by a statement of truth.
This is straightforward enough but the problem most then face is deciding how best to enforce the order and this is far from easy in many cases.
Family Procedure Rules 2010 have tried to simplify things by introducing rule 33.3 (2) for those who aren't sure how best to enforce. The rule in summary says you can state on your application how you want to enforce or you can leave it to the Judge to decide. Leaving it to the Judge seems the best option on the face of it but if you do this, the Court then issues an order requiring the debtor to attend Court and:
- Produce specified documents.
- Answer on oath questions that they are asked.
When further information is gathered, the Judge then makes a decision about how best to enforce the order.
Those who have already gone through the process of disclosing to one another their finances say feel leaving it to the Judge is not the best way forward. They know what assets there are and want to apply for specific types of order. Most methods of enforcement are found in Parts 70 and 71 Civil Procedure Rules which need then to be cross referenced with Family Procedure Rules 2010. Following the rules and procedures is a difficult enough task for many lawyers but those representing themselves often end up misunderstanding how best they can enforce and consequentially face applications being dismissed or rejected by the Court staff who are unable to offer any advice.
Although the Law Commission review on enforcement is welcome, the recent review carried out by the Law Commission in relation to an overall review of financial proceedings on divorce concluded that a reform project would be a substantial undertaking unsuitable for reform without Government support. The law relating to enforcement therefore remains hopelessly complex and procedurally tortuous for the foreseeable future.
Gabbie Clasper and Andrew Smith of Emsleys are accredited by the Law Society as experts in Family Law. Gabbie Clasper is also accredited by Resolution as a specialist in financial cases
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