Enforcement of Family Financial Orders
What is the best way to ensure that money is paid or property is transferred once a Family Financial Order is in place compelling a family member to pay money or to transfer property to another member of that family (e.g. on divorce)?
This is the question the Law Commission is currently considering with consultation taking place between March and July 2015, the aim being to then report on the results of the consultation sometime in 2017.
This question is being asked because there is a tendency for people to think that the legal process is over once an agreement has been reached or a Court has made a decision. However, sometimes a Family Financial Order is not complied with and needs to be enforced. Therefore, the Law Commission’s consultation is the first step to consider possible reforms to the existing methods of enforcement to make them more effective and easier to use.
Problems with the current legal system include:
There are several different enforcement options to choose from, which can be confusing. Also, the rules governing enforcement of Family Financial Orders are scattered around in different laws and regulations.
The existing enforcement methods are usually created for use in non-Family civil cases (eg, the payment of debt). However, Family cases are often very different from other cases because non-compliance with a Family Financial Order can have a direct effect on a families’ ability to keep a roof over their head and provide properly for their children. Therefore, a family can be at risk of losing their home if a quick and effective method of enforcing a Family Financial Order is not available.
Family Financial Orders might last for many years, such as when maintenance payments for the benefit of a child are ordered for a young child and are to last until the child completes their education. However, over that time the parents circumstances can change and the enforcement methods need to be able to swiftly address those changes. Whilst the family creditor might already have some knowledge of the debtors circumstances, it is possible that enforcement of a Family Financial Order is sought a long time after the end of the parties’ relationship. Therefore, the availability of up to date financial information can significantly influence the choice of enforcement method.
Many emotions are often at play in Family Proceedings which may not feature in other Civil Proceedings. These emotions can influence the reasons for non payment of money, the action or inaction taken by those owed money, and the direction and progress of enforcement proceedings. If the creditor and debtor have an ongoing relationship as parents to their children, ineffective enforcement litigation can do great damage to their parental working relationship to the detriment of their children.
To address these problems, the Law Commission shall consider several options:
Whether a single comprehensive set of Family Procedure Rules would improve the enforcement of Family Financial Orders.
What new powers might be given to the Family Court to help obtain up to date financial information and progress general enforcement applications? Allowing the use of existing laws could make it easier for information requests to be made directly to Government departments (including Revenue and Customs) and private organisations, to obtain details about the debtors employment and financial circumstances.
In what ways can information best be provided to the public about enforcing Family Financial Orders? More and more people are trying to take action without a solicitor as “litigtants in person”. Therefore, the Law Commission will consider improvements to include information being published in both electronic and paper format.
Should the applicant be required to consider mediation before making an enforcement application to the Family Court? Since 22 April 2014, an applicant to the Family Court in financial cases, has had to show that they have considered mediation before making an application, but the same requirement does not currently apply to applications enforcing Family Financial Orders.
Full details of the Law Commission consultation paper can be downloaded for free from their website http://www.lawcom.gov.uk/project/enforcement-of-family-financial-orders/
Kiteleys Family Team will continue to monitor developments and provide updates via further website articles. In the meantime, if you wish to discuss any issues raised by this article or other family matters generally, please contact a member of Kiteleys Family Team at any one of Kiteleys’ offices.