Enforcing a Financial Order made in the County Court
In many cases when a party has applied and received an Order for Financial Relief, the Respondent will fail to comply with some or all of the Order. It is therefore important for people to know what they can do to enforce such an Order and which way is most likely to succeed in their specific circumstances.
Before deciding on the best course of action to enforce a Financial Order, it is important that the affected party inform their solicitor or take advice immediately if the other party is in default. This is because in cases of periodical payments, should the arrears be more than 12 months old, the Court will only hear the matter if you apply for leave to bring the matter before the Court, and it is possible that the Court will refuse, which wipes the slate clean for the Respondent.
The method of enforcement to use will depend on the circumstances and assets of the Respondent. Whilst you may have known what these were at the time of the original hearing, should you believe that they could have substantially changed, you can apply for the Respondent to attend Court to have an oral examination as to their current financial circumstances. Failure by the Respondent to attend would be contempt of Court.
The following are possible ways of enforcement:
1. Attachment of Earnings Order:
Under such an Order the Respondent’s employer will be obligated to deduct a specified sum from his earnings. This amount will usually represent the amount of the maintenance with a proportion of the arrears, where possible. This money is then sent to the Court which will then forward it to the party in whose favour the Financial Order was made.
Such an Order will also specify a ‘minimum amount’, below which the Respondent’s wage cannot fall. This will mean that should his earnings drop below this amount, the employer will no longer be able to deduct any money from his wage.
This type of Order is best suited where there has been an Order for periodical payments. It can be applied for either when the Order is first made, or later when the Respondent defaults.
The main drawback of this method is that should the Respondent lose his job, or have his wage fall below the minimum amount, then this Order will not be enforceable. Additionally if they are self employed it cannot be used and if they constantly change jobs, it will make it administratively difficult to maintain.
2. Warrant of Execution:
This warrant enables the County Court Bailiff to seize and sell assets belonging to the Respondent so as to cover the outstanding arrears. No hearing is required for this. This method is most useful for unpaid lump sum orders, but could also be used where periodical payments have substantial arrears.
This method assumes the Respondent has sufficient goods of a value which could be sold to make up the arrears.
3. Third Party Debt Order:
Under this Order, the Applicant is able to receive payment direct from a third party who owed the Respondent money, such as a bank or building society.
Such an Order has two stages. First an Interim Order is made which will freeze the account/assets of the Respondent. This Order can be made without notice. Then a full hearing will take place where the Court can make the Interim Order final. This method can be useful to enforce any unpaid lump sum Orders.
4. S.24A Matrimonial Causes Act 1973:
Under this Act the Court can make a Financial Order with a condition attached relating to the property of the Respondent. So, for example, the Order could provide for the Respondent to pay a lump sum of £30,000 – which would be the Applicant’s share of the home – and should that sum not be paid within a specified time limit, then there is an Order to sell the home and have £30,000 of the proceeds paid to the applicant.
5. Charging Order:
The Applicant can apply to Land Registry for a charge to be placed against the Respondent’s land, or land in which they have an interest in. Again, such an Order is acquired in two stages, first obtaining an Interim Charging Order and then a Final one at a full hearing.
Once the Applicant has a Charging Order they will have a security for the debt. It can also be possible that the Court will Order the property to be sold, however where it is the Respondent’s home and the amount owed is relatively small it is likely that the Court will not make such a draconian Order. In this case the Applicant would have to wait until such time as the Respondent decided to sell their house.
6. Judgment Summons:
The Court has the power to commit the Respondent to prison where they have failed to pay under the Order, so long as the Respondent has defaulted on the Order and they have the means to pay but are refusing or neglecting to do so.
Although originally the Court would bring the Respondent in for questioning about their means, this is now seen as a breach of their Human Rights, so it is now necessary for the Applicant to show beyond reasonable doubt that the Respondent has the means to pay. This can make it very difficult so is rarely used.
An additional option is to apply to register the County Court Order in the Family Proceedings Court. In this way payments are made by the Respondent direct to the Clerk of the Court, enabling them to make a complete record of what money is being paid and when. It should be noted that many Family Proceeding Courts will only accept registration of a County Court Order where the Respondent is already in arrears.
An added benefit of registering the Order at the Family Proceedings Court is that they will then start enforcement proceedings, should the Respondent fall into arrears.
In deciding which route is best to take to enforce a Judgment you must take into account all the circumstances of the case, especially that of the Respondent. There would be no point going down a long and expensive route where at the end of it the Respondent has no assets to actually take.
This helpful article kindly contributed by Darlingtons Solicitors, who offer specialist advice in litigation and many other areas of law.