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Family Proceedings and enforcing financial orders
- AuthorMary Shepherd
Sometimes when the family court orders a payment to be made by your former spouse to settle a financial claim in divorce proceedings, the money owed is not always handed over when it should be. Where this happens it can be difficult to know what to do. Mary Shepard, family law expert with Martin Tolhurst Solicitors in Kent explains your options.
‘If money the court has ordered should be paid to you is not paid when due, it is up to you to take action’, says Mary ‘The first step is to make contact with your former spouse to try to encourage them to pay you what is owed. If this does not work then you should contact your solicitor who will make a formal demand for payment and, if necessary, refer the matter back to court for enforcement action to be taken.’
Options where a lump sum payment is due
If your former spouse owns a property it may be possible to ask the court to secure the money you are owed by placing a charge over the property. This is like having a mortgage in your favour and enables you to ask the court to order the property to be sold if the money you are due is still not forthcoming.
If your former spouse is owed money by someone else, for example a customer who they have done work for, then it may be possible to ask the court to order that this money is paid directly to you under what is known as a third party debt order. Similarly, if your former spouse has a chunk of money sat in a bank account it is possible to ask the court to order the bank to release this money to you in full or partial settlement of what you are owed.
Options where you have an order directing the sale of the family home
A common order is for the former family home to be sold and for you and your former spouse to each receive a share of the money raised. However, selling the family home can be emotionally difficult and it is not unusual for the person still living in the home to refuse to cooperate in an attempt to prevent or at least delay the sale. Where this happens, your solicitor can ask the court to:
- allow you to deal with the sale alone;
- order your former spouse to leave the property; or
- agree to sign the sale papers on your former spouse’s behalf.
‘Usually the court will order that both of you have conduct of the sale but, in reality, much of the day to day arrangements needed for the sale, such as viewings of the property or liaising with estate agents will, for obvious reasons, mainly be in the control of the person still living in the family home’, explains Martin Tolhurst Solicitors ‘but if your former spouse will not facilitate this then the court may be willing to order that these matters should be left to you to deal with and, if necessary, that your former spouse should be ordered to leave the property to enable this to happen.’
If a sale has been agreed but your former spouse is refusing to cooperate and sign the necessary documents, it is possible for the court to agree to sign the documents on their behalf to enable the sale to go through.
Options where you are owed maintenance
If you are owed money under a spousal maintenance order you can only usually ask the court to order the payment of arrears which are under 12 months old – beyond this time recovery becomes more difficult. It is therefore essential to deal with arrears promptly.
If your former spouse is in paid employment one option for securing the money you are owed is to ask the court to deduct it from their wages under what is known as an attachment of earnings order. This is not possible where they are self-employed, but there are other options that can be explored in these circumstances including the threat of bankruptcy.
Will I have to pay for enforcement action?
There will be a cost to taking enforcement proceedings, but it is usually possible to ask the court to add these costs to the money you are owed so that reimbursement can be claimed from your former spouse, assuming they have the money available to pay you.
Taking legal advice at an early stage can help you weigh up your opinions.
For a confidential discussion about the enforcement of financial orders in family proceedings, or for any other family law matter, please contact Martin Tolhurst Solicitors on 01474 546013 or email our new enquiry team on firstname.lastname@example.org.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.