Enforcement of Family Financial Orders

Current project status

  • 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

Making sure that separating couples pay what is owed to one another. We received an interim response from the Government in August 2017

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The problem

Each year thousands of separating couples apply to the courts for financial orders. These are payments which a court decides partners must pay to one another, to support an ex-partner for example.

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 individuals who do not have legal representation, 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.

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.

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

We recommended a number of improvements to the law of enforcing family financial orders, including:

  • consolidating the procedural rules, which can be hard to find and difficult to follow
  • providing more guidance and information for litigants
  • increasing the obligations on the debtor to provide honest and early disclosure of his or her financial circumstances
  • providing the court with wide powers to obtain information from third parties.
  • 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.
  • 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 – including that 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.

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.

Result

We received the Government’s full response in a letter from Lucy Frazer QC MP, Parliamentary Under-Secretary of State for Justice, dated 23 July 2018. We are very pleased that the Government has agreed to take forward those of our recommendations which do not require primary legislation to put into effect.

These non-statutory reforms can be implemented through changes in court rules and practice directions; court administration; and the provision of guidance. This is the case for much of what we recommend and we believe that these changes will go a long way towards making enforcement in this area more efficient, effective and accessible.

Regarding the recommendations which do require primary legislation, the Government has decided to await the implementation of the non-statutory reforms before taking a view on whether to implement the statutory reforms.

We continue to believe that our recommendations requiring primary legislation are necessary and hope that, in time, the Government will decide to take these forward.

 

Documents and downloads

Project details

Area of law

Property, family and trust law

Commissioner

Professor Nicholas Hopkins