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Heather Souter | 20th January 2017

Can’t pay, won’t pay


Heather Souter | 20th January 2017

Can’t pay, won’t pay

Whilst I’m more ‘can’t cook, won’t cook’, the recent Law Commission report has brought enforcement of financial orders to the front of many family lawyers’ minds.  It is, the Law Commission report acknowledges, a ‘practically important yet often overlooked area of law’.  As such, I thought it was worth spending a moment or two considering.

Before addressing the specifics of enforcement further, I propose to take a step back …

You and your spouse have separated and you’ve both agreed it’s for the best; there’s no going back. Divorce proceedings are underway. A financial agreement has been reached, as part of which you have both decided it is only fair that your soon to be ex will pay you so much per month until one of a number of ‘trigger events’ occur. Your respective solicitors draft a financial consent order which is sent to the court and approved by the judge. Shortly afterwards, decree absolute is pronounced, signalling the formal end to your marriage. Things are as good as they can be, in the circumstances.

Life continues without any noteworthy event; just what you want as you rebuild your life. You’re making ends meet, which is assisted greatly by the maintenance payments received each month under the financial order. In fact, they are essential.

That is, until one month you notice the payment hasn’t been made. Surely, you think to yourself, it is just a mistake (probably an error processing the standing order); the money will be there soon enough. It has to be; there is the mortgage to pay, after all.

Or not. And now several months have passed. Money is tight. You have tried speaking to your ex who is being, not to put too fine a point on it, awkward and unhelpful. Nobody told you way back when what would happen if the payments weren’t made ….

There are currently a number of enforcement methods varying from attachment of earnings orders, charging orders, writs of control and third party debt orders, to name but a few.  But what do they mean and what is their effect?

The Law Commission has highlighted this lack of clarity as a problem. Furthermore, it considers the current legal framework overly complex and far from user friendly. As a result, it thinks there is a very strong possibility the public does not view the current system as effective or fair.
So, what, in these circumstances are your next steps?

Many would assume the answer is to consult a solicitor, perhaps the same person you consulted before who, on the whole, represented your interests well.  Actually, on the current statistics, this isn’t necessarily the answer and many people now are choosing to represent themselves rather than instruct a solicitor (the report records that, in 34% of family proceedings, neither party is represented).

To assist those who do choose to represent themselves, The Law Commission has come up with a number of recommendations, to include:

  • clearer rules;
  • better methods to identify the payer’s latest financial circumstances;
  • making more of the payer’s assets available to discharge the debt;
  • creating coercive orders to apply pressure to comply with the payments due.

It seems likely these recommendations (the details of which and how they could be implemented are contained and expanded upon in the main body of the report) could assist people to ensure payments due to them are enforced and the recommendations have received a generally positive response; however, they are simply that: recommendations. Not helpful to you at the moment.

This got me wondering how many of The Law Commission’s recommendations actually translate into law. According to its own website, the answer is approximately two thirds which, I would say, is not too bad. A step in the right direction perhaps?

Perhaps another step is what I perceive to be an acknowledgement and awareness that more and more people are representing themselves in family proceedings.

I think this is a noticeable element of both this report and The Law Commission’s report of 2013 addressing matrimonial property, needs and agreements.

In fact, guidance has been produced specifically aimed at litigants in person in respect of sorting out finances on a divorce.  Such guidance has been endorsed by the President of the Family Division himself and, surely, there is no higher approval out there?

But what does this all mean?

To me, I think it is clear indication that, whilst legal proceedings remain somewhat unclear and inaccessible to most, this has been recognised and real progress is being made to address this and make peoples’ lives easier.  This is a particularly positive step in an area such as enforcement in which instructing a solicitor is not always cost-proportionate.

For those which it is proportionate, and those who feel they need a solicitor at their side, simplification of the procedures must surely assist in bringing about justice at a more affordable cost.

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