Once a court has approved a financial order it is legally binding and cannot be changed unless an appeal is upheld by a Judge. The implication of this is that reoccurring regular payments such as maintenance payments, payments of lump sums, or transferral of property provisions should be implemented wilfully and consensually by both parties. However, if one or both parties breach a financial order by failing to carry out his or her obligations then the order can be enforced.
If there has been a breach it is good practice to send a warning letter (known as a letter before action) to the breaching party to provide him or her with the opportunity to meet his or her responsibilities. If the breaching party does not respond then enforcement proceedings can be issued using Form D11. It is good practice to seek the assistance of a solicitor at this stage as you will need to provide details of what part of the order has been breached and how you would like the order enforced. There are a number of enforcements options available to the court and each of those options will be considered depending on the type of breach and the factors of that individual case. It is also good practice at the same time as filing the application to enforce to send a copy to the other party to put them on notice that they will be facing court action.
If the court finds that there has been a breach then the person who has broken the order is most likely to face an order for costs to cover both the D11 issue fee and any solicitor’s costs for acting on behalf of the applicant. In most cases, if there has been a breach, the order will be enforced by the court and the person who has made the breach will be required to implement the order within a certain period of time. If that party still continues to breach the order, ultimately a court has the power to impose a fine or even imprison the breaching party.
It is also worth bearing in mind that there are occasions where a breach may not be enforced. There are some circumstances in which a person breaching the order may not be asked to meet their responsibilities. The easiest example of that is where a party is unable to pay maintenance because he or she has been made redundant and does not have sufficient income to discharge that part of the order. In those circumstances, a court is unlikely to enforce the order and will give that person the opportunity to find new employment before restarting their maintenance obligations. In some cases, depending on the circumstances, the court may order that any missed payments are made up and that any arrears are discharged over a reasonable period of time and added to the monthly amounts. Any variation will be written into the order. Since whether or not an order would be enforced depends on the circumstances, it is often best to seek advice of a solicitor to clarify whether you are likely to obtain the outcome you desire.
Enforcement is rare but it does on occasion have to be considered and it is reassuring that there is a process available to you in a situation where your ex-spouse refuses to cooperate with the implementation of a financial order.
Matthew Clemence
Senior Associate