“What do I do? Where do I stand legally?”
Unfortunately enforcement proceedings are sometimes necessary following the conclusion of divorce and financial proceedings (financial remedy). In circumstances where, for example, the breaching party (the person who has broken the Court Order) has failed to place the family home on the open market for sale despite there being a Court Order in place for them to do so; or they have failed to pay you a lump sum on a specific date as ordered by the Court.
This will seemingly sound like a daunting position to be in, particularly when reaching a settlement has been a lengthy and fraught experience. However, Hunt & Coombs Solicitors are here to help and we are able to carefully and efficiently guide our clients through such experiences.
A member of our specialist Family Law team will start by meeting with you to gather information about the Financial Court Order and alleged break of the order. The conventional approach will then be to write a letter to the breaching party and allow them a short but reasonable period to remedy the breach.
If their non-compliance continues, Court enforcement proceedings may be necessary. An application will need to be sent to the Court together with a statement in support of the application and a Court fee. There are various Court applications which can be made depending on the method of enforcement required, and Hunt & Coombs will be able to advise you on the appropriate application route.
In situations where a lump sum payment has not been made, the Court can for example make an attachment of earnings order which provides for a proportion of the breaching party’s earnings to be deducted by his/her employer and paid to you direct until the lump sum is paid in full.
More recently in the case of Amin v Amin [2017] EWCA Civ 1114, the Husband had not paid a lump sum to the Wife of £350,000 pursuant to a Financial Court Order. The Wife was already due to receive a percentage of the Husband’s pension but the Court decided to increase the percentage share so that the Wife would receive £200,000 of the unpaid lump sum from the Husband’s pension. The remaining £150,000 and interest was ordered to be paid via the sale of two further properties. Interestingly in this case the Husband’s pension had increased in value which meant that the value of the Wife’s percentage share had also increased thus the Husband argued that the Wife was effectively receiving much more than the original lump sum ordered by the Court. The Husband tried to appeal the Court’s decision in light of this, however, the Court of Appeal refused his appeal stating:
“the Husband only had himself to blame by failing to take steps to comply with the lump sum order” (see paragraphs 9-16 of the Judgement).
In these situations, Hunt & Coombs will also be able to advise you on the merits of recovering your own legal costs from your ex-spouse. Unlike the general rule in financial proceedings (that the Court will make ‘no order for costs’ against the other party) the Court are more likely to make a wasted costs order in enforcement proceedings, which will allow you to potentially reclaim your legal fees from the breaching party at the end of the case.
If you would like any further advice on this or any other Family Law or Divorce matter please contact our Family Team on 01733 882800 or email [email protected] .
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