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Financial order enforcement facing reform

View profile for Claire Knight
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For the many couples who face a divorce or separation each year, the process is a stressful one, stretching them on both emotional and financial levels.  When considering the latter, there are many areas that need to be confirmed, and it’s in these situations that a family financial order is normally implemented.  Claire Knight, Family Lawyer, explains here how the enforcement of these orders is under review to ensure that families are not missing out on crucial financial support following the breakdown of a relationship.

A family financial order sets out arrangements for the division of assets, the payment of money or the transfer of property between family members and can include payments needed for the former spouse or civil partner, and also for the children from the relationship.  “If agreement cannot be reached, anyone looking to make an application to the court is required to attend a Mediation Information Assessment Meeting beforehand,” Claire begins.  “This meeting is to ascertain whether mediation sessions could help the couple agree on their financial arrangements for the future and for their children.  The beauty of mediation is that the needs of both people are considered in a neutral environment, resulting in a fair resolution that they can stick to.  From mediation they can then convert the agreement into a financial order via the court where it will be declared as binding and therefore, apparently, enforceable.”

The Law Commission has highlighted however that there are cases where even though a financial order has been reached; one party refuses to make the payments.  “There are many reasons why people may do this,” explains Claire.  “It may be as genuine as their circumstances have changed and so payment is not possible, or it could be as simple as them not wanting to pay as they don’t believe the financial order is fair, a response that could be avoided with mediation.  In either situation the party who may rely on that financial support is left struggling and faces high bills attempting to get payment through the legal system, which currently is complex and hard to implement for all involved, even the courts themselves.”

It’s for this reason that the Law Commission has recently published proposals to simplify the law around enforcement of financial orders in family cases.  Claire continues, “One proposal includes making information about the financial situation of the parties more available, so it can be clear as to why payment is not being made.”

The report also suggests new penalties should financial orders not be adhered to by the parties involved.  “Currently the only consequence is imprisonment which is hard to obtain for criminal reasons,” explains Claire.  “The new suggestions don’t require this.  The first is disqualification from foreign travel.  For those who may split their time between the UK and abroad, or have to travel with work, this can be a significant restriction to them.  Disqualification from driving is the second suggestion, and as an important component in hundreds of thousands of peoples lives, this may encourage compliance.  The side effect of this is that removing the ability to drive may remove the ability to travel to work and would have a knock on effect on the ability to pay the money that is being avoided.”

The final proposal is to enforce a curfew with an electronic tag.  Claire continues, “While a potential powerful incentive to follow the order, this would be virtually impossible to monitor and would be an expensive option, putting more pressure on the state.  There are also concerns as to whether this would breach the European Convention of Human Rights.”

Claire concludes, “These proposals by the Law Commission are an important step in the right direction, and shows those who avoid abiding by financial orders that they are not going unnoticed.”

The consultation paper for the proposals is currently open until 11th July 2015 and is available on www.lawcom.gov.uk.  If you’re going through the emotional step of considering divorce or separation, you can contact Claire or the Family team for advice on 02380 717431 or visit their section of the website here.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.

The Law Commission is a non-political independent body, set up by Parliament in 1965 to keep all the law of England and Wales under review, and to recommend reform where it is needed.