Divorce & Separation: Enforcing a Financial Order
Obtaining a final financial order is only the first step in receiving that which has been ordered. A court will not continue to have oversight over the implementation of the order or automatically enforce any judgement. The onus is therefore likely to be on the person with the benefit of the judgement to apply to the court for enforcement if the other fails to comply with the terms.
The usual aim of bringing an enforcement application is to recover money that has not been paid in accordance with an order e.g. arrears of spousal maintenance or the net proceeds of sale of a property because of non-compliance with an order for sale.
It is possible to make two types of applications:
- If the method of enforcement sought is already known then an application can be made directly for the specific remedy e.g.:
- Attachment of earnings
- Third party debt order
- Charging order
- Writ or warrant of control (seizure and sale of personal property)
2. Alternatively, a general enforcement application can be made asking the court to determine the appropriate method.
It can often be a careful balancing exercise when to issue an enforcement application. Due time should be given for the other person to comply with the order, be given reasonable notice of their failure to comply and time to rectify the breach. However, an application should not be delayed as there are additional hurdles to recover arrears of more than 12 months old.
The usual costs rules in family proceedings that each person pays their own costs do not apply to enforcement proceedings and the clean sheet rule applies. It is therefore possible to seek an order that the other person pay at least some of the legal fees incurred in having to bring the enforcement application.
Kara Swift is a Senior Associate at Family Law in Partnership. She advises on all aspects of private family law, supporting a wide range of married and unmarried clients following separation to resolve matters relating to their children, finances and property rights with diligence and care. Kara was named both Family Law Young Solicitor of the Year 2019 in the prestigious LexisNexis Family Law Awards, and a Rising Star family lawyer by the Legal 500 UK 2023.