Reaching a financial settlement in your divorce can be a stressful, arduous process. Whether or not you and your spouse agree matters privately or you have to ask a family judge to decide how to split your assets, you’ll end up with a legally enforceable financial order. Unfortunately getting the order does not always provide the finality that it should. It’s not unusual for the paying spouse to disregard the order in whole or on part. If this happens it’s important for the spouse who is due payments to act quickly to safeguard his or her future financial position.
Our advice to clients who find themselves in this position is usually for them to approach their ex informally and encourage him or her to comply with the court order. If this fails, we can advise you on the legal remedies available to you to force your ex to honour any financial obligation to you.
My Ex Can’t Afford To Pay Me
Financial orders are geared toward providing certainty for the parties. Even where financial circumstances change dramatically (the paying spouse loses a job for example) he or she cannot unilaterally decide to ignore a financial order or change the amount payable. If you are not receiving the payments due and your ex fails to respond to requests for payment you may have to take enforcement action. We look at what this involves below.
How Do I Enforce A Financial Order?
The ways you can secure money due to you under a divorce financial order are similar to the way other legal debts are enforced. The method you choose will depend on the nature of the debt. For example:
- Enforcing a lump sum order – At the time the original order was made an asset or specific amount of cash would have been identified to discharge the sum due. This may have been a property owned by your spouse. In such a case you can ask the court to place a legal charge on the property so that your ex will be unable to sell or raise a mortgage on the property without first discharging the debt to you. You may also be able to obtain an order for sale of the charged property if your ex refuses to pay the lump sum owed. If your spouse has a lump sum of money in cash it’s possible –by asking the court to intervene -to get the money released directly to you.
- Maintenance and other regular payments – It’s crucial to act quickly if your ex begins to default on maintenance or other set payments. After 12 months of incomplete payment it becomes more difficult to secure payment of any outstanding amounts. You can ask the court to put in place what’s known as an ‘attachment of earnings order’ where the money is automatically deducted from your ex’s wages at source. If your ex is self-employed there are other ways to enforce payment, including bankruptcy proceedings.
In extreme cases of non-payment the sanction of last resort is a prison sentence. One example of the prospect of prison being raised is the divorce case of Sir Frederick Barclay the former owner of the Daily Telegraph. In 2022 the court heard that he had of his own accord halved the maintenance payments he had been ordered to pay his ex-wife. She succeeded in a request for him to face criminal charges for non-payment.
Enforcing Financial Orders Abroad
What happens if maintenance and other orders made in one country need to be enforced by the courts of anther country? This could happen where assets are located overseas or one spouse resides overseas.
Various international protocols exist to make cross border enforcement of family court orders more straightforward, including the Lugano Convention 2007 and the 2007 Hague Convention.
Lugano is an EU-based treaty and which enables comprehensive mutual enforcement of judgments across the EU. Post Brexit UK citizens wishing to enforce orders in the EU and elsewhere must rely on the Hague Convention. It’s seen by many observers as providing a less robust enforcement framework than Lugano because of the discretion of judges overseas to refuse an enforcement application and also because of the number of exceptions it contains.
Enforcement proceedings should only be taken when you have failed to persuade your former spouse to comply with his or her obligations There will be a cost in terms of court charges and lawyer in taking any kind of enforcement action. It should be remembered that while you may be able to recover these sums from your ex the money will ultimately come from the pot of money available to satisfy the order. Additionally, the fact that proceedings have had to be taken in the first place will often suggest that the pot does not contain superfluous funds.
An experienced family lawyer will always consider the possibility of non- compliance with a settlement at the time of negotiation. If there’s a likelihood that enforcement may be necessary consideration may be given to taking out an injunction.