Occasionally, issues can arise where one party refuses to comply with the terms of a Financial Order. If this happens you will need to consider the various enforcement options available to you.
A Financial Order setting out how the finances are to be dealt with upon divorce or dissolution becomes legally binding upon the parties on the date that it is approved and sealed by the Court.
In some cases, implementation of an Order can be delayed (see Mesher Orders below) or frustrated by one or both parties. In these instances it may be necessary to seek the Court’s further involvement to enforce the terms of a Financial Order. There is a section within Financial Orders under the “liberty to apply” provision that enables either party to return the matter to Court for determination of an implementation issue by a Judge.
The Court can be asked to enforce a variety of orders. The most common of which are:
i. Orders for the sale of a property – the Court can be asked to determine issues as minor as who the selling agent will be or the sale price as well as sign documents on behalf of the parties.
ii. Orders for the transfer of a property – the Court can sign documents on behalf of a party that has failed to do so.
iii. Payment of a lump sum, e.g. in respect of a Mesher Order.
When a divorcing couple owns a home, which houses young children and the parent with primary care, the Court can make an Order deferring the non-resident parent’s financial interest until one of the following occurs:
a. The youngest child reaches the age of 18 or finishes full time education;
b. The resident parent’s remarriage or cohabitation with a new partner;
c. The resident parent’s death;
d. An earlier agreed sale/further order.
In such cases, it is the responsibility of both parties to ensure that the Order is implemented upon the happening of one of these “trigger events”. Sometimes this does not happen immediately and the resident parent is unwilling or unable to raise a sum sufficient to pay the non-resident parent and/or is resisting a sale of the property to enable this to happen. In that instance the non-resident parent can apply to the Court to enforce the Order by way of an Order for Sale.
What is the application process for enforcement proceedings?
Applications to enforce involve a separate application to the Court and hearings will take place at which the issues will be determined either by agreement between the parties or by the Judge. It is advisable that an enforcement application be filed as soon as possible where one party has not complied with a Financial Order as any delays can impact the likelihood of success.
For further information on the different types of scenarios that can arise and the enforcement options available, please click here - Family Law Insight | Tozers LLP.
Costs of Enforcement
The general rule in family proceedings is that the parties shall be responsible for their own costs, however within enforcement proceedings the Court may make an Order for Costs against the party that has failed to comply with the original Order. An Order for Costs can include any Court fees or legal fees incurred, although it is rare for one party to be ordered to pay all of the other party’s costs.
How can Tozers help?
If you require any further advice on the divorce process or require assistance to proceed with a divorce, please do not hesitate to contact our specialist Divorce and Finances team.