Enforcement of Financial Orders

What Enforcement of a Financial Order Means

A financial order is the court's decision, or your agreement approved as a consent order, about pensions, property, savings, investments and maintenance when a marriage or civil partnership ends. It does not enforce itself: if the other party does not comply, you apply to the court. Part 33 of the Family Procedure Rules 2010 applies to an application in the High Court or the family court to enforce an order made in family proceedings.

It covers a lump sum unpaid on its due date or by the instalments set, arrears of maintenance, a property not transferred or sold, and an undertaking to pay money, which Practice Direction 33A says may be enforced as if it were an order where it has effect as one under Part 2 of the Matrimonial Causes Act 1973.

Two time rules matter. Under section 32 of the Matrimonial Causes Act 1973, arrears under an order for maintenance pending suit, an interim order for maintenance or a financial provision order that became due more than twelve months before enforcement proceedings are begun cannot be enforced without the leave of the court. Under rule 83.2(3) of the Civil Procedure Rules, applied by rule 33.1(2), a writ or warrant of control must not be issued without the court's permission where six years or more have elapsed since the order. Part 33 applies in the same way to an order made on the dissolution of a civil partnership, and the twelve month rule for that order is in paragraph 63 of Schedule 5 to the Civil Partnership Act 2004.

The Methods the Family Court Can Use

The right method depends on what your ex has and where it is:

• Attachment of earnings: under section 1(1A) of the Attachment of Earnings Act 1971 the family court may make an attachment of earnings order to secure payments under a High Court or family court maintenance order; Part 39 of the Family Procedure Rules sets the procedure. The order goes to the employer, who deducts from wages, so it is of little use against a self-employed payer.
• Third party debt order: Part 72 of the Civil Procedure Rules, applied by rule 33.24, lets the court order someone who owes your ex money, usually a bank, to pay it to you. An interim order first stops the bank reducing the balance below the sum stated; the court then decides at a hearing whether to make it final.
• Charging order: under section 1 of the Charging Orders Act 1979 the court may impose a charge on your ex's property, such as a share of a house, to secure the money due, considering all the circumstances, including your ex's personal circumstances and whether any other creditor would be unduly prejudiced.
• Order for sale: under section 24A of the Matrimonial Causes Act 1973, on making a secured periodical payments, lump sum or property adjustment order or at any time afterwards, the court may order the sale of property in which either or both of you has a beneficial interest; anyone else with a beneficial interest must be given the opportunity to make representations first.
• Warrant of control: the Civil Procedure Rules on writs and warrants of control apply to family enforcement. As GOV.UK describes it, the bailiff asks for payment and, if the debt is not paid, visits the home or business to see if anything can be sold to pay it.
• Signing documents on your ex's behalf: where a person neglects or refuses to comply with an order to execute a conveyance, contract or other document, section 39 of the Senior Courts Act 1981 lets the High Court or the family court order that it be executed by a person the court nominates, with the same effect as if your ex had signed.
• Judgment summons: a summons under section 5 of the Debtors Act 1869 requiring your ex to attend court. The court may commit a person to prison for a term not exceeding six weeks, or until payment, but only if you prove that they have, or have had since the order, the means to pay and have refused or neglected to pay.

Evidence and Common Problems

Under rule 33.3(1) an application to enforce an order for the payment of money is made in a notice of application with a statement of the amount due, how it is arrived at, verified by a statement of truth. The first job is the arithmetic: the order, what fell due and what was received. The second is information: if you do not know where the money is, Part 71 of the Civil Procedure Rules, applied by rule 33.23, lets the court order your ex to attend, produce documents and answer questions on oath.

Problems we see often:

• arrears more than twelve months old, which need the court's leave under section 32
• a self-employed payer, or one paid through a company or in cash, where a third party debt order or charging order has to do the work
• a payer who says they cannot afford it: on a judgment summons the burden is on you, and rule 33.14 provides that the debtor may not be compelled to give evidence
• assets moved since the order, which may call for a freezing order or an application about hidden assets and non-disclosure
• money or property abroad, where enforcing a UK order in another country follows separate rules on our international family law pages

Two things are not enforced this way. A pension sharing order is implemented by the pension scheme within the period set by section 34 of the Welfare Reform and Pensions Act 1999; see pensions on divorce. Child maintenance arranged through the Child Maintenance Service is managed by the Service, which can arrange payments and take action if a parent does not pay; only a court order for child maintenance is enforced through the court, as our child maintenance advice page explains.

How the Enforcement Process Works

1. We check the order is in force and clear, calculate the sum due and prepare the statement of the amount due with its statement of truth.
2. We write to your ex or their solicitor with the arrears and a short deadline; the reply, or the silence, is useful evidence later.
3. We choose the route: under rule 33.3(2) the notice may apply for a specified method, or, on Form D50K, for such method of enforcement as the court may consider appropriate. A court fee is payable, listed in the GOV.UK civil and family court fees leaflet (EX50), and help with court fees depends on savings, benefits and income.
4. On a general application the court must order your ex to attend court to answer questions on oath and to file and serve a financial statement, with documents, not less than seven days before the hearing, under a penal notice.
5. At the hearing the court chooses the method on the evidence, or hears a judgment summons where the means to pay can be proved; a judgment summons is served at least fourteen days before the hearing.
6. We follow through: the employer is notified, an interim third party debt order is made final, a charging order is registered and a sale sought if the debt remains unpaid, or the matter returns to court if a suspended committal order is not honoured.

Costs and Interest on Unpaid Sums

Rule 28.3(5) sets a general rule that in financial remedy proceedings the court will not order one party to pay another party's costs, subject to the conduct exception in rule 28.3(6). Rule 28.3(4)(b) defines those proceedings as proceedings for a financial order and a short list of others, which on the wording of the rule does not include enforcing an order already made, so costs fall to rule 28.1 and the order the court thinks just. We ask for the costs of enforcement against a party who has ignored an order; nothing is automatic.

The order itself may provide for interest: under section 23(6) of the Matrimonial Causes Act 1973 the court may order that a deferred lump sum or its instalments carry interest at a rate specified in the order from a date not earlier than the order until payment is due. Whether interest also runs after a sum falls due is a separate question, which we check when we calculate what is owed.

When Legal Advice Is Especially Important

Advice matters most where:

• the arrears are approaching or past twelve months, or a writ or warrant of control is needed on an order six years old or more
• your ex is self-employed, runs a company or holds assets in more than one name
• the order needs a signature your ex is withholding and a sale or remortgage is time critical
• you are the paying party and your circumstances have changed, where an application to vary the order may be the right response rather than default
• non-payment is being used to intimidate or control you: in immediate danger call 999, the National Domestic Abuse Helpline is on 0808 2000 247, and our domestic abuse and injunctions pages explain the protective orders available

RakLAW Solicitors does not offer legal aid. Our charges are on the family law fees page.

How RakLAW Solicitors Can Help

We act for people enforcing financial orders and for people responding to enforcement, from 42 Shad Thames in Southwark, a short walk from Tower Bridge. The firm was founded by solicitor Rakesh Prajapati. Where the debt is disputed we look at whether variation of the order or a return to financial remedy proceedings is the better route; related topics are on our money and financial settlements hub. Call 0203 345 2000 or book an appointment for a free 15-minute consultation. RakLAW Solicitors is SRA regulated, SRA number 8007405.