The most difficult part of a divorce can often be agreeing a financial settlement. For some people, this will involve months or years of court proceedings or intense negotiations, both of which make reaching an agreement even more of a relief.
However, the situation can become more complex if your ex-partner does not stick to the terms of the financial agreement. At this stage, you may have to consider enforcing the financial order. This article explores the enforcement process and how to potentially avoid it.
My ex-partner was supposed to pay me a lump sum but hasn’t, what do I do?
As a first step, you could contact your ex-partner to remind them of their obligation. If you do not feel comfortable speaking with them directly or this is unsuccessful, your solicitor could draft a more formal letter setting out the terms of payment.
If your ex-partner still does not comply with the order, you may have to consider applying to the court for enforcement.
Will I have to attempt mediation before making the court application?
There is no mandatory obligation to attend a form of non-court dispute resolution, but it may be worth trying if you think it will resolve the issue. It could be that your ex-partner needs more time to pay a lump sum which could be discussed and agreed on within mediation.
How will the order be enforced?
There are several options available to the court when enforcing an order which include:
Attachment of earnings order – your ex-partner’s employer would be directed by the court to deduct a proportion of their wages and pay it to the court. That money would then be paid to you.
Charging order – an order made against your ex-partner’s property so if it were sold or re-mortgaged, you would receive some of the proceeds. This could extend further to an order for that property to be sold.
Third party debt order – an order made against someone other than your ex-partner, so any money owed to them is owed to you instead. For example, if they had a sum of money in a bank account, an order could be made directing the bank to pay it to you. This option may also be more appropriate for those self-employed, as they may be due to receive payment for their work, and an order could be made directing that payment to be made to you.
Warrant of control – this would permit bailiffs to take assets and/or money from your ex-partner in order to make payment to you.
Which option should I choose?
You do not have to choose an enforcement method when making your application, it can simply be made as a general enforcement application. The court would then utilise the method they believe is most appropriate.
Is there a time limit?
If you are applying to enforce maintenance payments which are in arrears, you need to do so within 12 months otherwise you will need the court’s permission.
Whilst there is no time limit when applying for enforcement in other regards, you should try and deal with the issue promptly.
What happens once the court receives my application?
Once your application is issued, the court should send out an order to you and your ex-partner asking them to complete a Form E1 which will set out their financial circumstances alongside documentary evidence such as bank statements. The order should also confirm a hearing date which you both need to attend.
Ideally, your ex-partner should have completed the Form E1 before the first hearing so it can be as effective as possible.
What can I do to ensure my ex-partner complies with an order?
It is difficult to ‘force’ someone into doing something, even if they are court ordered to do so but there are provisions that can be made to try and minimise any risk of issues arising.
You should seek specialist advice when agreeing a financial settlement so a solicitor can draft the order. Your solicitor will include standard provisions within the order, but you may want to include more specific clauses to ensure the order is clear and easy to comply with.
For example, if you are due to receive a lump sum, make sure there is an agreed date by which it will be paid. You can also specify the bank details for the account you would like it paid to for added clarity.
As family law specialists, our team regularly draft financial orders and we understand the importance of the finer details. We always explain the orders to you in detail to ensure you understand your obligations and those of your ex-partner. We can also assist if you need to enforce an order that has been made so contact us to see how we can help.
