March 20, 2015

Why reforming family financial orders is overdue

We welcome the news that the Law Commission is consulting on how to simplify and enforce financial orders, which family courts have the power to make for a former spouse or civil partner.

Thousands of separating couples apply to the courts each year for financial orders – either to turn a mutually agreed arrangement into an order enforceable by law, or because they cannot agree on how to divide their finances.

Family courts have the power to make such an order for the benefit of both partners and sometimes for the benefit of children. Many couples quite understandably see the court order as the final stage of their divorce.  However, it can sometimes be only the start of a complex and stressful process if an ex refuses to comply with such an order.

The challenge is that financial orders are notoriously difficult to enforce, leaving many individuals and families with inadequate financial provision to fund a decent standard of living.

A root and branch overhaul of a system that is hard to understand and difficult to use is long overdue.  Enforcement of family financial orders cannot be treated like ordinary debt, but should consider the circumstances which gave rise to the order. Also in its present form, the process for enforcing orders is too costly for many people – and too unsatisfactory in terms of outcomes.

The Law Commission has launched its consultation at a time when unprecedented numbers of people are representing themselves in family court. The law on enforcement of financial orders is confusing – even for lawyers – and can be bewildering for litigants in person.

The Commission wants views on how to improve existing mechanisms for enforcing orders and is keen to look at new solutions to tackle non-payment.

One way might be to enable a judge to re-open an order so that if one party refuses to pay the court could attach an asset such as property or finances.  Although there is already provision for a charging order on property, the legal process for pursuing this can be lengthy and potentially costly. An immediate (and therefore cheap) referral back to a judge, who is unfettered in the options available to him or her, could be an answer.

As well as looking at reforms to the current system, the Commission is keen to improve information and advice on financial orders for the public.

The consultation ends on July 11 and the Law Commission will assess all responses with the aim of publishing its report and recommendations in the summer of 2017.

If you have any questions or comments about separation or divorce please call us on 0113 246 0055, leave us a comment below or drop us an e-mail.