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Over the last couple of weeks, I have explained Family Court Financial Orders and have examined how the figures for a Financial Order are calculated. This is far from the end of the matter however, as there is a likelihood of non-payment. In such circumstances, the enforcement actions available must be considered.
Enforcement measures are intended for those who make a conscious decision to not meet the requirements of a Financial Order. This is often with the hope that the individual benefitting from the Court Order takes no further action to ensure they receive what they are due.
There are a range of measures available to enforce a Financial Order, such as obtaining an attachment of earnings order, seizing the possessions of the debtor or obtaining a charging order over any property owned by the debtor.
Many cases are pursued by ‘litigants in person’, when individuals represent themselves in Court, leaving them with the choice of which enforcement method is the most appropriate; a tough call when they have neither experience nor expertise in such matters.
For this reason, it is possible for the creditor to make a ‘general enforcement application’ which asks the court to make ‘an order for such method of enforcement as the court may consider appropriate’.
The range of enforcement measures looks set to widen even further; the Law Commission has proposed new measures to enforce Financial Orders, including disqualification from foreign travel, disqualification from driving and even curfew orders.
The power of a Judgment Summons
Whether such measures are adopted remains to be seen, but in the meantime one of the most significant enforcement measures available is that of a Judgement Summons.
The Judgment Summons is an application for the debtor to be committed to prison for a period of six weeks, if the court is convinced that since the date the financial order was made the debtor had the means to pay, but refused or neglected to do so.
The hope of the creditor is that the threat of prison will be enough to focus the mind of a debtor who has thus far refused to meet their obligations, despite it having been proved they have the means to do so.
The burden of proof for a Judgment Summons is criminal rather than civil, which means the Court must be satisfied beyond reasonable doubt the debtor has refused or neglected to pay, whereas the original order would have been granted on the balance of probability that they had the means.
Imprisonment for non-payment of debt is not normally available as a sanction outside of Family Court cases. The Court may opt for a suspended committal order, which gives the debtor a chance to pay what is owed, set new terms for payment, make an attachment of earnings order or create a mechanism for payment such as a standing order.
Unfortunately, some debtors may view a six weeks sentence as a price worth paying rather than settling their financial commitments. This has led to some judges of the Family Division to recommend that the sentence be brought in line with the two years maximum for contempt of court. Nevertheless, a Judgement Summons remains an effective and unique enforcement option available.
If divorce is a consideration, it pays to seek advice early from an experienced lawyer who understands all the options available to you. Please contact Mike Vale, a Family Law Consultant here at Ansons on 01543 267236 or email him at email@example.com
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