The family court has a wide discretion to make various orders on divorce, including for the sale and transfer of property, transfer of pensions and maintenance to name a few. In most cases the parties subject to these orders do what they need to do to implement them, but what people don't always realise is that where a party doesn't comply with their obligations there are no automatic sanctions for not doing so and the onus is on the aggrieved party to take the matter back to court by way of an application for enforcement.
Last year I represented the successful applicant in the case of H v W, a case where there was zero compliance from the respondent with the various orders made against her. This case was quite stark in that the respondent not only failed to comply, she actively prevented my client from carrying out his obligations under the order which caused him significant loss. This led to not only the standard enforcement applications being made, but also an application for committal for breach of an undertaking and an application under the Thwaite jurisdiction, to compensate my client for the loss he had suffered caused by the other party's actions.
Cases like this are not common, but what we do often see, and in my view are now seeing more of, are issues like:
- One party not cooperating with the joint marketing of a property that is to be sold.
- Where a property is to be transferred into one party's name, the person who is transferring their interest not cooperating with signing the necessary paperwork.
- Where there is a pension share, the person whose pension is being shared not signing the necessary paperwork for this to be implemented.
- Payments (e.g., lump sum, maintenance, costs orders) being made late, or not at all, or the full required payment not being made.
Where there are difficulties with a property being sold, it is usually appropriate for the original order to be varied so to provide for a specific party to have conduct of the sale.
Where a party has failed to sign paperwork, such as at 2 and 3 above, an application can be made for a Judge or partner in a law firm to sign this on their behalf so the transaction can complete.
Where an order for payment has not been complied with, the court has various enforcement powers such as attachment of earnings order (where payments are taken directly from the payer's wages at source); a third party debt order (where someone else owes money to the payer, this comes straight to the person due to be receiving payments under the order); and a charging order (to charge the payer's property with the amount owed, a bit like how lenders secure their interest in a property subject to a mortgage). In some situations the court can order a sale of property in place of orders not complied with. Not every option will be appropriate for every case (e.g., where a party is self-employed, an attachment of earnings or will not be appropriate), but the usual course of action is to apply for enforcement by such method as the court may consider appropriate.
Where an undertaking has been breached, if that undertaking was to pay a sum of money it can be enforced as if it were an order. If the undertaking was for something else then it has to be enforced by way of an application for committal like I did in H v W.
Unlike financial orders, if child maintenance payments are not being made in most cases the party due to receive these can contact the Child Maintenance Service who can take its own enforcement application.
Whilst it may seem unfair that there are no automatic consequences for non-compliance with orders, any person thinking of not complying should be aware that interest may become payable on what is already owed, and the court is very likely to make a costs order in favour of the other party. It is therefore important to get advice if you are thinking of not complying with an order, or your find yourself in the situation where your ex-partner has not complied.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
