Many people who obtain a family financial order following a divorce, such as an order for lump sum payments or spousal maintenance, meet problems in enforcing payment of the settlements due to them. The whole process of taking steps to enforce the Court order can cause a lot of upset, frustration and embitterment with the Court process.
The existing mechanisms for enforcement are far from satisfactory and there are concerns that when the Courts cannot enforce family financial orders it can lead to real hardship for former partners and children and also, as a result, place a huge burden on the state.
For this reason, the Law Commission has opened a consultation which has started on the 11March 2015 and concludes on the 11July 2015.
Professor Elizabeth Cook, Law Commissioner for property, family and trust law has expressed the following opinion:
“The law governing the enforcement of family financial orders is hard to understand and difficult to use. When the Courts cannot enforce family financial orders, it can lead to real hardship for former partners and children and place a huge burden on the state. We need to understand whether existing mechanisms for enforcement are working as well as they might. What other powers a Court might use to tackle non payment and how can we find better solutions for couples when one partner is able to pay but refuses to do so.”
Sweeping sanctions have been put forward by the Law Commission, a body led by an Appeal Judge which supplies ministers with proposals on necessary legal reforms.
The Law Commission has provisionally proposed three new coercive orders. They are:
(a) Disqualification from foreign travel;
(b) Disqualification from driving; and
(c) Curfew orders
Disqualification from foreign travel
The Law Commission is proposing that Courts should have the power to make a disqualification from foreign travel for a period of up to 12 months in the first instance.
Disqualification from driving
It is proposed that all family creditors should be able to apply for disqualification from driving. It is expected that such power would be exercised with caution and would not be used in a way which would unduly impact on the debtors ability to earn a living as this would defeat the whole point of the order. However, it is anticipated that it can be an effective method of influencing “won’t pay” debtors. It is proposed that the orders can take effect for up to 12 months in the first instance.
Curfew orders
The effect of a curfew order would be to require a person to remain at a place specified in the order for specified periods of between 2 and 12 hours in any one day. There would need to be arrangements for electronic tagging. The terms of any curfew order could be such that it would not prevent a debtor from working and so it is considered that a curfew order may be more appropriate than either of the disqualification orders.
Grounds for making a Curfew order
These orders are only likely to be made where it can be established that the debtor is not able to pay. As a first step, therefore, a creditor who made an application for a coercive order would need to establish on the balance of probabilities that the debtor has the means to pay and has deliberately not done so. The Court would then have the discretion to make an order if it was not in the interest of justice. It is hoped that if such measures were imposed that this would have a dramatic impact and that these proposals would be far better solutions for separating couples than the mechanisms currently in force which are in many cases ineffective.
In order to establish the difference between what the Commission termed “can’t pay” and “won’t pay” debtors, the Commission suggests that the Court should be able to apply to HM Revenue and Customs for information about employment and earnings. Similar orders could force banks and building societies to give up information about accounts. The information can then be passed onto the creditor, who is usually the former spouse of the debtor.
The Law Commission papers is also suggesting that specially trained Judges should be appointed in every Family Court to make and supervise the enforcement procedures.
The Commission is hoping that the mere threat of these sanctions against an unwilling debtor would intimidate the recalcitrant debtor not complying with the family financial Court order.
It is considered that electronic tags would shame debtors into making payment and the threat of driving bans or restrictions on ex-spouses passports are likely to be far more effective remedies and solutions to the problem than what is currently available.
There are some family lawyers who have some doubts as to whether these measures will work. However, if these measures are adopted they would certainly demonstrate that the Courts are not afraid to flex their muscles and would be a great improvement to the mechanisms currently available.
Our specialist family team are experienced in dealing with divorce and financial matters. For advice and support please call us on 0113 3205000 or by emailfamily@winstonsolicitors.co.uk.
