At the conclusion of family court proceedings, whether that concerns divorce, a financial remedy or children, a final order will be made by the court. This order may reflect an agreement that the parties themselves have reached between them, known as a “consent order”, or it may reflect a decision made by the court.
It is always preferable for parties to reach an agreement themselves, and have this embodied within a Consent Order. A reason for this is that it is considered more likely that they will adhere to an order which they have agreed, rather than one which has been imposed upon them.
Unfortunately, in some cases, parties may breach the terms of an order by ignoring the provisions within it, or by simply not complying with those terms set out within the Order.
If this happens, the first question to ask yourself is how significant the breach is. For example, late collection of a child for contact should generally be possible to resolve without court involvement. In such situations, or sometimes in the case of more significant breach, it may be possible to resolve the issue through communication.
However, where the breach is more serious and cannot be resolved through communication or negotiation, legal advice is likely to be necessary. It may be that the involvement of a lawyer will be sufficient to move the matter forward but if this is unsuccessful, an application can be made back to the court for enforcement of the original Order.
What is enforcement in family law proceedings?
It is possible to apply to enforce a Family Court order by making an application back to the Family Court. The actual application to the Court and the relevant powers of the court will vary depending on various factors including whether your case is about children or a financial remedy. There are a range of mechanisms available under Part 33 of the Family Procedure Rules.
Enforcement of an Order in financial remedy cases comes within Part 33 of the Family Procedure Rules 2010 and the applicant can ask the Court to determine the appropriate method of enforcement and the powers available to the court can include taking payment directly from earnings or freezing and seizing a bank account and/or assets.
In a case concerning children, under the Children Act 1989, the Court has a wide range of powers if somebody has failed to comply with an order such as ordering parties to attend a parenting programme or mediation, variation of the existing order, a fine and/or compensation, or an unpaid work requirement. In some circumstances, there can even be committal to prison.
The Court must take into consideration many factors but the prevailing concern is always the welfare of the child.
Enforcement is also available where undertakings have been breached. It is possible to commit a non-compliant spouse to prison, although this happens extremely rarely.
Enforcement where assets are abroad
There will be further complications if enforcement relates to financial assets abroad. It is easier to enforce in some foreign jurisdictions than others. You may also need to take steps to preserve assets before they are frittered away. Movement of money for the purpose of defeating a claim for a financial remedy or its enforcement can be undone by the court. If there have been matrimonial proceedings for financial relief under section 37 of the Matrimonial Causes Act 1973, it may be possible to obtain such an order, a freezing order, to preserve assets.
In some circumstances, it may still be possible to obtain freezing orders even when such proceedings have been concluded, using the inherent jurisdiction of the High Court.
These procedures can be costly and therefore any such enforcement of an Order must be considered in the context of the assets in the case, or the welfare of any child concerned.
It is crucial to seek specialist legal advice on any issues in this area.
This is not legal advice; it is intended to provide information of general interest about current legal issues.