Enforcement of financial remedy orders in the family court

In most cases the parties to a court Order dividing their assets following a divorce comply with the Order. What can be done if one party fails to comply?

There are several methods of enforcement that can be employed. The appropriate method of enforcement will vary from case to case and will largely depend upon the nature of the default, which could be anything from missing one spousal maintenance payment to failing to pay a lump sum, or sabotaging the sale of a property.

Methods of enforcement

The usual methods of enforcement include:

• Applying to the Court for a Judge or Solicitor to sign sale documents on behalf of a party refusing to do so;
• A third party debt order – which is an Order that a third party (usually a bank or building society) holding monies on behalf of the party in default to pay some or all of those monies to the other party to satisfy the debt;
• An attachment of earnings order, which would order the defaulting party’s employer to pay the other party a set sum per month deducted from salary
• Seeking to enforce an unpaid lump sum against a property owned by the defaulting party by way of a legal charge and order for sale; and
• A Judgement Summons – the court can, in extreme cases where the defaulting party has the means to pay his or her former spouse and willfully refuses to do so, impose a prison term on the defaulting party.

One other method, often overlooked, is to enforce against the defaulting party’s pension. Although a pension is a different asset to money in the bank or money invested in property, there are certain circumstances where the pension can be targeted to enforce the debt.

The pension holder must be at least 55 years of age otherwise this method is not available as the pension cannot be taken if the party is under that age.

This method was considered in the Civil Court in a case called Blight -v- Brewster in 2012 but its principles do apply to family cases. In that case, the defaulting party had a pension which entitled him to draw down 25% as a lump sum. He argued that he could not be forced to make an ‘election’ to take the lump sum because it was not in his financial interests to do so.

On appeal, the Judge commented that he should not be able to hide assets in a pension fund when he had a right to withdraw monies needed to pay the other party.

The other party successfully obtained a Third-Party Debt Order against the pension fund and the Judge made Orders which allowed the other party’s solicitor to drawn down the lump sum on the defaulting party’s behalf. The judge also ordered the defaulting party to sign the necessary paperwork to allow this to take place.

In cases where this method of enforcement is used but the amount of the pension that can be taken as a lump sum is insufficient to meet the entirety of the debt, the enforcing party can also apply for an Attachment of Earnings Order against the pension income, which would require the pension company to pay a part of the monthly income to the enforcing party until the debt was repaid in full.

More information

For more information regarding financial remedy, please contact our family team here.