It can be an enormous relief to finally get your finances sorted out, but what can you do if your ex wilfully refuses to stick to the terms of the financial order? This article discusses the situation and what you can do if this happens to you.
Financial orders set out the settlement between a married couple or civil partnership following divorce or dissolution. It is a legally binding document, so if any changes need to be made, they must be made by the court rather than arbitrarily by one party. Failure to comply with its terms can put the breaching party in contempt of court. In this situation, it is important to know that this is not the end; you can apply to the court for further assistance.
If you can, contact your ex in the first instance and find out why they have breached the order. They may be able to demonstrate they had a genuine and justifiable reason for not complying. Perhaps they have lost their job, suffered a bout of ill health or been injured at work. Sometimes, a breach can arise because of a misunderstanding or admin error. In these cases, the situation can probably be remedied without further proceedings. It is then up to you to decide whether to give your ex the benefit of the doubt.
If the breach was not an oversight, and your ex has committed a breach, or consistently breached the order, then you can take action against them. The first step is to contact a solicitor and ask them to send a warning letter to put your ex on notice that you intend to make an application to enforce the order if the situation is not rectified, or a reasonable explanation given. This might encourage your ex to put things right.
If the warning letter doesn’t work, then you can make an application to enforce the order. It is advisable to get legal advice if you are thinking about taking enforcement action because consideration needs to be given as to which part of the order needs to be enforced and the legal procedure to follow.
What is the legal framework governing financial orders in the UK?
Financial orders in divorce and separation cases are governed primarily by the Matrimonial Causes Act 1973 and Schedule 1 of the Children Act 1989. These laws empower the courts to make financial provisions ensuring a fair division of assets, maintenance payments, and support for children.
During divorce proceedings, either party can apply for a financial order, which may include spousal maintenance, lump sum payments, property adjustment orders, pension sharing, and child maintenance. The court considers several factors, including the couple’s financial resources, the length of the marriage, the needs of any children, and each spouse’s contributions. The overriding principle is fairness, aiming for an equitable settlement based on individual circumstances.
For unmarried parents, financial support for children is dealt with under Schedule 1 of the Children Act 1989, which allows claims for maintenance, housing, and educational expenses. The Child Maintenance Service (CMS) also enforces child maintenance payments.
The court encourages mediation and negotiation before litigation and if an agreement is reached, it can be formalised as a consent order, making it legally binding. Where disputes persist, the court will decide on a fair division based on the parties’ needs and financial circumstances, ensuring financial security for both spouses and children.
What are the common reasons for non-compliance with financial orders?
Non-compliance with financial orders can stem from various factors:
- Financial hardship: Unexpected financial downturns, such as job loss or business failure, may impede an individual’s ability to fulfil payment obligations.
- Deliberate evasion: In some cases, a party may intentionally refuse to comply, possibly because of lingering resentment or a belief that the order was unjust.
- Misunderstanding of terms: Complex legal language or ambiguous terms within the order can lead to genuine misunderstandings about obligations.
- Changes in circumstances: Significant life changes, like remarriage or health issues, might affect one’s capacity to adhere to the original terms.
What are the legal consequences of breaching a financial order?
Failure to comply with court-issued financial orders can result in serious legal repercussions:
- Contempt of court: Non-compliance may lead to a contempt of court finding, which carries penalties such as fines or imprisonment. For instance, in the case of Trott v Trott & Another [2016], both a husband and his new wife were sentenced to prison for breaching court orders related to financial remedy proceedings.
- Enforcement actions: The court can implement various enforcement measures, including:
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- Attachment of earnings order: Directs the debtor’s employer to deduct owed amounts directly from their salary.
- Charging order: Places a charge on the debtor’s property, which can lead to a forced sale to satisfy the debt.
- Third-party debt order: Freezes funds held by third parties (e.g., banks) to recover the owed amount.
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What is the impact of non-compliance on children and dependents?
When financial orders involve provisions for children, non-compliance can have profound effects:
- Financial instability: Failure to receive mandated support can lead to economic hardship, affecting children’s living standards, education, and extracurricular opportunities.
- Emotional distress: Ongoing disputes and enforcement actions can create a tense environment, impacting children’s emotional well-being.
- Parental relationships: Persistent non-compliance may strain or sever the parent-child relationship, leading to long-term familial discord.
Enforcing a financial divorce order
If a binding part of the order has not been complied with, the court can order another person to carry it out instead. For example, if the breaching party refuses to sign the transfer document, allowing the property to be sold, then the court can order the document to be signed by another party.
If an application is made to enforce an order for payment of money, the court may ask the debtor to provide documentary evidence and a full explanation as to why the money has not been paid. The debtor may be asked to provide these details under oath, so if they lie, they could be sent to prison for contempt of court.
The court takes an extremely negative view of anyone who breaches a court order and will usually make an order to ensure they fulfil their legal responsibilities. In terms of divorce/dissolution, this can relate to enforcement of financial orders, breach of a financial consent order, non-payment of maintenance or facilitating the sale of property. Depending on the circumstances, the court can:
- Direct that a specified sum is taken directly from your ex’s wages if they have failed to make payments such as maintenance. Their employer will take money from their wages and pay them into the court, who will, in turn, use it to satisfy the terms of the order. This is called an attachment of earnings and can only be ordered for employed people.
- Secure the amount owed against any property they own. Depending on the amount outstanding, the court can even force them to sell their property. This is called a charging order.
A charging order can be used to secure a variety of divorce/dissolution related debts, including: lump sum orders, maintenance arrears, costs orders, child maintenance arrears, and any interest due under the terms of the original order.
- The judge can sign documents required to execute transferring property to you under the terms of the original order. This is done by the judge signing the Deed of Transfer.
- Issue a warrant of execution. This enables court bailiffs to enter your ex’s property and remove any items of value with a view to selling them at auction to raise sufficient funds to meet the outstanding payments.
- Impose a term of imprisonment for contempt of court or a fine. This is called a judgment summons or committal to prison. Although this does not secure payment, it is a persuasive way to get a persistently difficult payer to pay up or otherwise face prison.
Although there will be a cost in taking enforcement action, it is possible to request the court to reclaim these costs from your ex by adding them to the money you are owed. Your ex will also be liable for any fines or penalties the court may decide to impose. Of course, this only works if they have the money to pay you.
For those in the position of potentially breaching a financial order and unable to make maintenance payments, it may be sensible to revisit the original terms of the order and apply to amend or vary them. Whatever the situation, it is sensible to take action to avoid being found in contempt of court and liability for further costs to be added to what is already owed.
Whilst it is always the hope that getting a sealed order is the end of things and the beginning of your new life, it is worthwhile remembering it does not always happen. In such circumstances, getting legal advice that sets out your options is strongly recommended to identify the best way forward, to promptly address any breaches and ensure you seek the best possible remedy.
What is the role of legal representation in enforcement proceedings?
Engaging experienced legal representation is pivotal when trying to navigate enforcement proceedings as they can offer:
- Expert guidance: Solicitors can provide tailored advice on the most effective enforcement strategies based on the debtor’s circumstances.
- Procedural compliance: Legal professionals ensure that all applications and proceedings adhere to court protocols, minimising delays or dismissals.
- Negotiation and mediation: Solicitors can facilitate negotiations or mediation sessions to achieve compliance without protracted litigation, preserving resources and reducing stress for both parties.
What preventative measures can I take to ensure compliance with a financial order?
Proactively addressing potential compliance issues can mitigate future disputes:
- Clear and detailed orders: Ensuring that financial orders are explicit, with unambiguous terms and deadlines, reduces the likelihood of misunderstandings.
- Financial disclosure: Comprehensive and honest disclosure of assets and liabilities during proceedings fosters transparency and trust.
- Periodic reviews: Including provisions for regular reviews of financial arrangements can accommodate changes in circumstances, maintaining fairness and relevance over time.
Alternative dispute resolution mechanisms
Before resorting to court enforcement, alternative dispute resolution (ADR) methods can be effective and reduce costs:
- Mediation: A neutral mediator facilitates discussions between parties to reach a mutually acceptable resolution without litigation.
- Arbitration: An arbitrator hears both sides and makes a binding decision, offering a private and potentially quicker alternative to court proceedings.
- Collaborative Law: Both parties and their solicitors commit to resolving disputes amicably through structured negotiations, avoiding court intervention. Although if an agreement cannot be reached, new solicitors need to be instructed going forward.
Are there any recent developments and reforms in enforcement of financial orders?
The following developments and case law are helping to bolster enforcement when one party refuses to honour the financial order during divorce:
- Judicial Precedents: Recent cases, such as Moher v Moher [2020] EWCA Civ 636, highlight the court’s willingness to enforce financial orders rigorously. In this case, the Court of Appeal reaffirmed the obligation to comply with spousal maintenance payments, emphasising that defaulters face serious consequences.
- Digital Innovations in Enforcement: The UK government is exploring digital solutions to improve enforcement efficiency, such as using AI-driven financial tracking tools to identify non-compliant individuals’ assets and confirm their whereabouts.
- Stronger penalties for non-payment: There are ongoing discussions about strengthening penalties for repeated breaches of financial orders, including asset seizures and extended prison sentences. Although firm steps are yet to be taken in this regard.
The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.
