The Group Hug
You’ve been through the courts and maybe even had a Full and Final Hearing. The day you’ve been waiting for is here and your ex has to make the payment to settle your divorce once and for all. Finally it will all be over and you can get on with the rest of your life. The 4pm deadline comes and goes and no funds have been deposited. You realise that your ex hasn’t complied with the Financial Order.
What should you do next?
If you have a solicitor you should call them immediately for legal advice. A family financial order is one which applies between spouses on divorce for financial provision and it’s serious. It’s for things like living expenses and housing needs. When the paying party, the ‘debtor’ fails to comply, it can mean that the recipient, the “creditor” will suffer significant financial hardship.
The two methods used to enforce the order will be to either target the debtor’s assets or to put pressure on the debtor to pay their ex or creditor.
What can be done?
If your ex hasn’t complied with the financial order it may be that a Third Party Debt Order is the way to go. These are orders made against a third party who owes money to the debtor. That person or bank pays the money direct to the creditor.
In the case of non-payment, an application to imprison the debtor can be made. This is known as a Judgement Summons. One such case is Migliaccio v Migliaccio (26 April 2016). Imprisoning a debtor isn’t necessarily about huge sums of money, as in this case. It is about money being available and a debtor simply not complying with the order. The debtor could be living a lavish lifestyle, not making efforts to work to pay the debt or still paying huge sums of money out for other things such as school fees or cars. Going to prison doesn’t mean that the debt goes away, it is still there.
My ex hasn’t complied with the financial order and even though I have children I want to see him in prison! I have had enough and I can’t be blamed if he is sent down. I think it would do him the world of good!
Sue, Chester
Sometimes an Attachment of Earnings Order is applied to the debtors salary. The employer is required to pay the creditor before paying the debtors salary.
If you are not receiving periodical payments from your ex then it can be ordered that the payments are paid into the Family Court. Ask the court to enforce the order on behalf of the creditor. If the payments are not made to the Family Court then the creditor can ask the court to continue with enforcement.
I think if more non-payers were sent to prison it would show just how serious these orders are. I do think that more people are being sent away though and too right! These orders are made to allow people to get on with their lives. I paid my ex and set us both free.
Barry – Felixstowe
A Charging Order can be used to give the creditor the right to be paid from a capital asset owned by the debtor, but this is only when the debtor disposes of that asset. However, a creditor can apply for an order for the sale of that asset where the debtor refuses to sell the asset.
The court has the power to execute documents, in other words “sign” documents on behalf of an debtor who is being stubborn. This is known as Court Execution of Documents.
What about Brexit and assets abroad?
Dear The Group Hug,
My ex’s assets are in the EU (Italy). Is Brexit going to affect things for me? Basically, he hasn’t complied with the court order to pay me a lump sum.
What are my options?
Ms SM
You can enforce the order in Italy and to do so you should instruct an Italian lawyer. In order to enforce a foreign judgment or order in Italy, you would first need to have the foreign order recognised by the courts there by making an application to the Italian civil court in the relevant territory where you would seek to enforce it.
Once it is recognised, you would then need to apply to have it enforced by way of attaching his assets there (including income and/or real property or any receivables).
In my view Brexit should have little impact on one’s ability to enforce an order of this sort in Italy and similar jurisdictions as there are already laws and mechanisms in place there for the recognition of non-EU judgments. It would simply be a matter of utilising the laws applicable to a non-EU state rather than the otherwise applicable EU Regulation(s).
Chrissie Cuming Walters – Partner – Keystone Law
My preliminary comment is that international expertise is always necessary in cases where assets are hosted internationally, and advice from a family lawyer who specialises in international family law in the country where the case proceeds, in addition to obtaining advice from a family lawyer in the country where the asset is based is essential.
Not all family lawyers have expertise and experience of these types of international family law complexities. Consideration of international enforcement should be considered with your domestic and international lawyer at the time the order is drafted, and any international safeguarding measures be considered and put in place pre-emptively, where proportionate and possible.
Laura Naser – Senior Associate, Family Department, Penningtons Manchester Cooper LLP
If your ex hasn’t complied with the Financial Order, we would always advise that you seek legal advice. You can find family solicitors and other experts in The Hug Directory.
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