Obtaining a financial order in a divorce is often only half the battle, as you then need to ensure your ex-spouse will actually pay the sums due. Prolonged non-payment can cause serious hardship to children and dependants.
The current rules for enforcement are considered by many to be archaic and overly complex. This month, the Law Commission has published proposals to reform the way in which people can enforce financial orders in family cases.
The consultation paper suggests ways in which the current routes to enforcement can be simplified and streamlined so that payment can be achieved more quickly and without substantial legal costs.
The paper also suggests new, creative ways to persuade an individual to pay the sums due under an order where they have the funds to do so. The only current “coercive” enforcement route is the threat of imprisonment under a judgment summons. This is currently a difficult sanction to obtain because it requires a criminal standard of proof. The new suggestions – which would be easier to obtain - are as follows:
- Disqualification from foreign travel
- Disqualification from driving
- “Curfew” orders.
The proposed travel bans could be particularly effective. In many cases, non-paying spouses will try to keep assets off-shore to avoid enforcement. This can go hand-in-hand with an international lifestyle. The inconvenience of having their “wings clipped” for a period could encourage compliance.
Similarly, the threat of being disqualified from driving could prompt some reluctant payers to comply with their obligations but this approach could backfire if a spouse needs to drive to earn the income from which payment will be made.
Under a “curfew” order the non-payer would be required to stay at a specified place for up to 12 hours at a time and to wear an electronic tag. Implementing and monitoring such measures could be cumbersome and expensive. Further, there could be concerns whether such orders would be compatible with the European Convention on Human Rights.
If implemented, the proposed reforms would give the family court additional teeth to ensure compliance with its orders.