How to enforce a court order made in financial proceedings

When a court order is made in financial proceedings following a divorce (either by a court or through agreement), the Order will set out each parties’ obligations, for example the Order may provide for maintenance, lump sum payment, sale of a property or pension sharing order. The Order provides both parties with protection in case the other party defaults on the Order.

It can be difficult getting to a stage where a financial order can be made, and if you then realise the other party is not going to comply with part of the Order it can feel like you are back to square one. However, you should consider whether you can enforce the Order the other party has defaulted on. In this blog we look at some of the common questions about enforcing a financial order.

What happens if the other party breaches the Order?

If one party fails to fulfil their obligations under the Order, you can make an application to the Court to enforce the Order. There are a number of different methods of enforcement, and the right one for you will depend on which part of the Order has been breached.

What are the different methods available to enforce a Order?

The Court has a number of available methods they can use to enforce a financial order including:

• Attachment of earnings – an order directing the paying party’s employer to deduct a portion of their wages and pay this into the Court, before it is then paid to you. This method of enforcement is only suitable when the paying party is employed;  
• Third party debt order – an order directed at someone other than the paying party, so that third party funds owed to the paying party are paid to you instead. For example, if the paying party has a bank account with a positive balance or they are due to receive monies, the order can be made over these sums;
• Warrant of control – an order to authorise bailiffs to seize money or goods from the paying party to be used for payment to you;
• Charging order – a charging order is applied to the paying party’s property so if the property is sold or re-mortgaged you will be paid from the proceeds. In some cases the court can also make an order for sale;
• Judgment summons – an order which could lead to imprisonment if the paying party continues to default on the terms of the Order. This order does not in itself secure payment but it is a good incentive to get them to pay. 

Do I have to decide how I want to enforce the Order?

You do not need to decide which method of enforcement you want to use. You can apply to court for an order of such method of enforcement as the court may consider appropriate, using a Form D50K. Once the court have heard the evidence they will then decide which method of enforcement is most suitable.

Is there a time limit to apply to enforce the Order?

If you are applying to enforce arrears you will need to apply to enforce within 12 months of the arrears being due. If the arrears are more than 12 months old the court’s permission is required to enforce payment.

How do I make the enforcement application?

Unless you have a specific method of enforcement in mind, the majority of enforcement applications are made on a Form D50K, which allows the court to enforce using such method as the court considers appropriate.

You should make the application to the court where the Order you are seeking to enforce was made. The court will then issue an order requiring the paying party to attend court on a specified date and time, to answer questions as required by the court.

Can I seek the costs of enforcing the Order from the paying party?

The general provision in family proceedings is each party pays their own costs, however enforcement applications are treated slightly different and if you are successful in enforcing the Order you can expect to have some of your costs paid by paying party. The court retains a general discretion as to costs and will consider what costs they consider reasonable before making any order.

What happens if the paying party has a lot of money but recently lost their job, will this impact whether I can enforce the Order?

If the paying party has recently lost their job and therefore their income stream, provided they have sufficient capital the court can consider capitalising any maintenance sums. The court would assess the sum of future maintenance payments and then calculate a value for these amounts, to be paid as a lump sum.

The paying party has moved abroad, can I still enforce the Order?

It is possible to enforce payment of an Order made in England & Wales in the courts in another jurisdiction, and similarly the courts in England & Wales can enforce payment of orders made overseas. Each jurisdiction has their own rules and the method of enforcement will depend on which jurisdiction is involved. The family team at Kingsley Napley can assist with enforcing English orders in another jurisdiction or orders made in another jurisdiction in England.

We have extensive experience of advising upon and representing clients (on both sides) of enforcement proceedings.

In conclusion, when a court order in financial proceedings following a divorce is breached, pursuing enforcement becomes paramount. Various methods like attachment of earnings, third party debt orders, and warrants of control provide avenues for redress. The court can determine the most appropriate enforcement approach, and applying for enforcement should be done within 12 months of arrears. Although costs typically fall on each party, successful enforcement might lead to the paying party covering some expenses. Unique scenarios like job loss or international relocation necessitate tailored strategies. Ultimately, seeking expert guidance is essential for effectively navigating and enforcing court orders.

Further information

If you have any questions regarding this blog, please contact our Family team.