Current project status
The current status of this project is: Complete.
List of project stages:
- Analysis of responses
- Initiation: Could include discussing scope and terms of reference with lead Government Department
- Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
- Consultation: Likely to include consultation events and paper, making provisional proposals for comment
- Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
- Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations
This project is complete. We published the Report on 15 December 2016 and received the Government’s interim response on 2 August 2017.
Each year thousands of separating couples apply to the courts for financial orders. Sometimes these orders are not complied with. The law of enforcement of family financial orders is a complicated area, contained in a range of legislation and court rules. It can then be difficult for parties, particularly litigants in person, to recover the money they are owed. This can lead to significant hardship both for the parties and for their children.
The key aim of this project is to make this difficult area of law more effective, efficient and accessible, and to strike a fairer balance between the interests of both parties. To this end, the Law Commission recommends wide-ranging reform of the law of enforcement of family financial orders.
History of the project
The project was recommended to us by the Family Law Bar Association in 2010 in its response to the consultation on the Law Commission’s 11th Programme of Law Reform. We took on the project as part of the Commission’s 11th Programme, but the start of the project was delayed until the completion of the project on Matrimonial Property, Needs and Agreements. We began work on the enforcement project in April 2014.
The Commission published its consultation paper, “The Enforcement of Family Financial Orders”, in March 2015. We accepted consultation responses until 31 July 2015 and held consultation events in Cardiff, Manchester and London. Following the consultation period, the Commission established an advisory group to discuss issues that arose from the consultation and consider the details of recommendations for reform.
Overview of our recommendations
The recommendations were made with four key problems with the current law in mind:
- The complexity of the rules
- A lack of information about the debtor
- Some of the debtor’s assets being beyond existing enforcement powers
- A lack of means to apply pressure to debtors who can but will not pay
To simplify the law and provide a more accessible route to recovery, we recommend consolidating the procedural rules, which can be hard to find and difficult to follow. We also recommend providing more guidance and information for litigants.
To improve the likelihood that enforcement proceedings will result in recovery, we recommend increasing the obligations on the debtor to provide honest and early disclosure of his or her financial circumstances. The Report also recommends providing the court with wide powers to obtain information from third parties.
In order to make it harder for the debtor to avoid enforcement action by shielding his or her assets, we recommend extending existing methods of enforcement to assets that currently cannot be enforced against. Our project recommends, for example, that creditors are able to enforce against funds held in a joint account and against pension assets.
We recommend that the courts should be able to apply pressure to debtors that have the means to pay but are refusing to pay what is owed to the creditor. The project recommends that such debtors may be disqualified from driving or prevented from travelling out of the country until the judgment debt is settled, where it is in the interests of justice to do so.
In addition, we propose a number of other improvements to the law of enforcing family financial orders. For example, changes to how enforcement cases are allocated, an increase to the period of time to enforce arrears before the court’s permission is required and the introduction of a new power for courts to remit arrears.
We also recommend a new and more efficient procedure for the general enforcement application. This is an enforcement application only available in family proceedings and is often used by litigants in person.
Overall, our recommendations are designed to create an effective system that produces compliance with court orders in a way that is fair to both the creditor and the debtor.
We received a letter from Dominic Raab MP, Minister of State for Justice, on 2 August 2017, which provided the Government’s interim response to our report.
The Government thanked us for our work in this area and stated that it provided a firm basis for consideration of the full extent of the problem of the non-payment of family financial orders and the ways to tackle it.
The letter stated that a full response will be provided after consideration of the recommendations we made in the context of the Government’s broader thinking on the family justice system.
Area of law
Property, family and trust law
Professor Nicholas Hopkins