05 Nov Matrimonial Enforcement: What Happens After a Financial Court Order?
By Isabel Agudo (Junior Associate) and Adam Paterson (Senior Associate)
Unfortunately, for many people, obtaining a final order is only the first step in what could be a lengthy process to actually receiving monies due under a court order. Non-payment of monies due can have a devastating impact – rent or mortgage payments may be missed and basic necessities may become unaffordable.
There may be situations where someone either refuses to or becomes unable to fulfil their obligations under the court order. The reality is that the burden of enforcement falls on the receiving party to take steps to ensure that they receive the award to which they are entitled. The most appropriate method of enforcing a financial court order varies depending on what the “judgment debtor” (the person who owes money) owes to the “judgment creditor” (the person entitled to that money). The process will also change depending on the jurisdiction in which the assets are located.
Domestic Methods of Direct Enforcement
A judgment creditor can apply for the following orders to attempt to recover money from the debtor:
1. Attachment of Earnings Order. A monthly sum from an employed judgment debtor’s wages may be ordered to be paid to the creditor to satisfy a lump sum payment or maintenance arrears.
2. Third Party Debt Order. If a judgment debtor is owed money by a third party (i.e. rental income), the amount owed to the debtor may be ordered to be paid to the judgement creditor instead.
3. Charging Order. The judgment creditor can apply for a charge against property owned by the debtor in order to secure the money that they are owed. In some circumstances the court has the power to order the sale of a property.
4. Warrant of Execution. Enforcement agents may be directed to seize goods from a judgement debtor that are either held until payment of the debt or possibly sold to realise the sums due.
5. Further court order – an order for a method of enforcement as the court may consider appropriate. The judgment debtor would be required to answer queries about their financial affairs. The court may appoint a receiver to collect the monies receivable by the debtor.
Options and Remedies for International Territories
In multi-jurisdictional divorce cases the situation becomes more complicated and the necessary steps will depend to a large extent on where the assets are located. These cases will normally require co-operation between both solicitors here and abroad and local advice is often crucial.
In cases where a worldwide freezing order was applied during the course of the proceedings, it is possible to apply to extend that freezing order. Also known as a Mareva injunction, the purpose of this order is to restrain a party from disposing of or dealing with an asset until a specific time or event so that it cannot be hidden or transferred away. Assets that can be frozen include bank accounts, land, jewellery, vehicles, shares and bonds.
The effectiveness of an overseas freezing injunction depends largely on how co-operative the other jurisdiction is. The English courts ask foreign courts to investigate disclosure and ascertain the truth of ownership of assets, especially where a non-compliant ex-spouse avoids travelling to England.
A freezing order is not only capable of binding the ex-spouse debtor who was a party to the financial remedy proceedings – it can also bind a relevant third party even if the ex-spouse creditor to whom money is owed (the individual who is now the claimant in the enforcement proceedings) has no substantive cause of action against that third party. This is called a Chabra injunction.
Actually realising payment from the foreign assets will normally require obtaining some form of recognition/registration of the original financial remedy court order in the country where the assets are based. The particular orders that are appropriate and available will depend on the country in question.
Navigating the Journey of Enforcement Proceedings
At the point that a final order is made, it may not always be obvious what a receiving party’s enforcement options are. Guidance should be sought from independent legal advisers.
Financial investigations into a judgment debtor may also form a crucial part of the enforcement process. It is important to focus attention on those assets which are likely to be available to meet payment of the sums due under the original order. It is also important to consider the assets and their ownership but also the likelihood of recovery in the relevant jurisdiction.
At Schneider Financial Solutions we are able to lend to clients who wish to commence enforcement proceedings following their financial remedy proceedings and we have experience of the process from start to finish. We are able to provide loans to people who ensure that they can utilise the enforcement process to obtain the award to which they are entitled.
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