This project, commissioned by Professor Nicholas Hopkins, is complete. The Law Commission published this report on 15 December 2016 and awaits the Government’s response.
Each year thousands of separating couples apply to the courts for financial orders. Sometimes these orders are not complied with. The law of enforcement of family financial orders is a complicated area, contained in a range of legislation and court rules. It can then be difficult for parties, particularly litigants in person, to recover the money they are owed. This can lead to significant hardship both for the parties and for their children.
The key aim of this project is to make this difficult area of law more effective, efficient and accessible, and to strike a fairer balance between the interests of both parties. To this end, the Law Commission recommends wide-ranging reform of the law of enforcement of family financial orders.
The project was recommended to us by the Family Law Bar Association in 2010 in its response to the consultation on the Law Commission’s 11th Programme of Law Reform. We took on the project as part of the Commission’s 11th Programme, but the start of the project was delayed until the completion of the project on Matrimonial Property, Needs and Agreements. We began work on the enforcement project in April 2014.
The Commission published its consultation paper, “The Enforcement of Family Financial Orders”, in March 2015. We accepted consultation responses until 31 July 2015 and held consultation events in Cardiff, Manchester and London. Following the consultation period, the Commission established an advisory group to discuss issues that arose from the consultation and consider the details of recommendations for reform.
The recommendations were made with four key problems with the current law in mind:
To simplify the law and provide a more accessible route to recovery, we recommend consolidating the procedural rules, which can be hard to find and difficult to follow. We also recommend providing more guidance and information for litigants.
To improve the likelihood that enforcement proceedings will result in recovery, we recommend increasing the obligations on the debtor to provide honest and early disclosure of his or her financial circumstances. The Report also recommends providing the court with wide powers to obtain information from third parties.
In order to make it harder for the debtor to avoid enforcement action by shielding his or her assets, we recommend extending existing methods of enforcement to assets that currently cannot be enforced against. Our project recommends, for example, that creditors are able to enforce against funds held in a joint account and against pension assets.
We recommend that the courts should be able to apply pressure to debtors that have the means to pay but are refusing to pay what is owed to the creditor. The project recommends that such debtors may be disqualified from driving or prevented from travelling out of the country until the judgment debt is settled, where it is in the interests of justice to do so.
In addition, we propose a number of other improvements to the law of enforcing family financial orders. For example, changes to how enforcement cases are allocated, an increase to the period of time to enforce arrears before the court’s permission is required and the introduction of a new power for courts to remit arrears.
We also recommend a new and more efficient procedure for the general enforcement application. This is an enforcement application only available in family proceedings and is often used by litigants in person.
Overall, our recommendations are designed to create an effective system that produces compliance with court orders in a way that is fair to both the creditor and the debtor.
Click here to view the Law Commission’s report and related documents.