Insights

Legal Aid Cuts Impact on Family Courts


13/06/2013

A divorce order may now be just the start of proceedings to make sure that former spouses meet their obligations

What happens if your former spouse refuses to transfer the property and pay the lump sum or the monthly maintenance awarded in a divorce case?

With the recent severe restrictions to family legal aid there will undoubtedly be more litigants-in-person (or self-represented litigants as they are now called). Without the threat of enforcement proceedings from a solicitor acting on your behalf against the defaulting spouse, you may even need to bring enforcement proceedings yourself to turn the order granted in your favour into reality. This is likely to further stretch the already overburdened family courts.

Coupled with the reduction in both court staff and judges in our courts, the spouse seeking enforcement is likely to find access to justice even more challenging.

But, there are many legal options to help you to get the money due, and ultimately the order granted in your favour enforced against your former spouse. And if further costs are expended in obtaining additional enforcement orders from the court, your former spouse is likely to be ordered to pay those costs.

So, what do you need to know to enforce a divorce order?

Firstly, if your former spouse fails to transfer the property as ordered, a relatively simple application can be made to the court that dealt with the divorce, for the judge to sign the necessary documentation on behalf of the non-signing former spouse. That documentation will then be lodged with the Land Registry in the normal way, which will transfer ownership of the property.

If you are of limited means and the sums involved are not particularly large, and more importantly you anticipate that there may be difficulties in obtaining payment, it is worth considering registering your maintenance order in the magistrates’ court. Once registered, the magistrates’ court will then take over responsibility for enforcing the order.

In terms of non-payment of a lump sum, before taking any enforcement proceedings it is always worth first pointing out to the non-paying former spouse that interest at the judgment rate (currently 8 per cent) runs from the date of the order (in the County Court this applies to lump sums of at least £5,000).

This can result in a substantial additional sum being paid by the defaulting former spouse and often serves as a useful warning to them to pay the sum ordered on time.

If the threat of substantial interest accruing on the debt still does not elicit payment then an application to the court can be made to compel the non-paying former spouse to attend court and provide full evidence of his or her means and assets. This will enable the applicant and court to consider the most appropriate enforcement order.

Should the non-paying former spouse fail to attend court as ordered or produce the required evidence, they will be in contempt of court and may even be sent to prison. The court can make a number of orders against the non-paying party:

An attachment of earnings order is usually used to enforce maintenance (periodic payments) but it can also be used to recover an unpaid lump sum over a period of time. A fixed sum is normally deducted from the non-paying spouse’s earnings, weekly or monthly.
A third party debt order directs someone who owes money to the non-paying former spouse (such as a bank, where the account is in credit) to make the payment to the applicant.
A charging order against a property provides security for the debt, and the person in whose favour the order was made is in the position of a mortgagee. Any further enforcement will then be by an application for an order for sale of the property.
Execution is the seizure and sale of the non-paying former spouse’s goods; particularly useful if they own, for example, expensive art, antiques or cars.
A judgment summons can be an effective threat as it forces the non-paying former spouse to appear in court and face examination under oath about their ability to pay the money owed. If the court considers that they have the means to pay since the original order then they will be required to do so immediately. They will need to show why they should not be sent to prison for any previous failure to pay.

There may also be cases where the former spouse intends to leave the country and thus frustrate any action by the spouse to whom the money is owed.

An application for a writ “ne exeat regno” may be appropriate if you can show probable cause for believing that the former spouse is about to leave the court’s jurisdiction unless arrested and that their absence would materially prejudice you in the prosecution of your action.

Even if the non-paying former spouse has already moved abroad, that does not necessarily mean they are safe. A number of conventions exist that provide for maintenance and other orders to be registered overseas for enforcement. This is known as reciprocal enforcement. England has reciprocal enforcement arrangements with most European countries, the US, Australia, most Commonwealth countries, and others.

The exact nature of the proceedings will depend on the terms of the convention or other arrangement in place between England and that other country. In the absence of reciprocal enforcement arrangements it will be necessary to commence a fresh civil action in the court of the country concerned.

The effects of recent legal aid changes will undoubtedly begin to be felt in the coming months as family cases wind their way through our courts. There can be no doubt that there will be a substantial increase in self-represented litigants having to grapple with complex legal matters.

When it comes to divorce, getting the order in your favour might be only half the battle – it may still need enforcing.

Gordon Dadds