Talking Family Law – the Resolution Podcast

This is the start of a series into enforcing orders; this part focuses on enforcing financial remedy orders.

We are joined by Christopher Stirling (Field Court Chambers) and Kara Swift (Family Law in Partnership) who breathe life into this topic.

Chris starts with telling us that recitals that deal with the payment of money are enforceable: Austin v Haynes [2021] EWCA Civ 1919 per Moylan LJ. However, be careful about how you are drafting the recital to make sure that they are not conditional or incapable of definition.

In respect of property adjustment orders, Chris reminds us that they take effect immediately in equity once DA/Final Order is made: Mountenay v Treharne [2003] Ch 135.  He also reminds us of the ability of the Court at the time of the final hearing to provide for deadlines for executing documents in default of which an application can be made ex parte to direct that a conveyancing solicitor or Judge should sign in the place of the defaulting party.

Kara then reminds us that orders for sale pursuant to S.24A of the MCA allows for orders for sale to be made at any time on or after the making of a financial remedy order making it useful standalone relief.  She reminds us that a lump sum is a simple debt.  It doesn’t take priority over any other debt, unless it is supported by a default order for sale.

Kara and Chris move on to discuss charging orders.  Note, there are no formal time limits for making charging order – see Lowsley v Forbes [1999] 1 AC 329 – though any interest claimed on sums charged is limited to 6 years – s.24(1) LA 1980 – nor is there need to seek any permission after 6 years like some other forms of execution: see Frankl-Rietti v Cheltenham & Gloucester plc [2011] EWCA Civ 524 per Rimer LJ @ [21] – and once obtained have an indefinite “shelf life” – CA refused to set aside charging order made 16 years previously in Yorkshire Bank Finance v Mulhall [2008] EWCA Civ 1156

They are made via a 2 stage process – interim and final order – interim order usually an ex parte process – though can be made immediately at time of judgment/order – see Mostyn J in Green v Adams [2017] 2 FLR 1413 (though if lump sum may be more practical to make default order for sale).

Can get charging order where judgment debtor has some interest in charged asset and it is not necessary to establish the extent of that interest at stage of charging order –  Walton v Alman [2017] 1 FLR 927 .

Kara tells us that 3rd party debt order – interim and final – is a mechanism to secure funds ahead of enforcing the direct payment of them to the applicant by the third party holding the funds. Note, A v Z (No 2) (Interim Third Party Debt Order), where an interim order was made against a party’s solicitors’ client account.

Enforcing costs orders is like any other lump sum, but it must be liquidated to be enforceable i.e. you need to have agreed the amount or had it assessed after on detailed or summary basis. You do not have to wait for the final order of the divorce.

Periodical payments order can be enforced by an attachment of earnings order.  They can be made as part of the original final order, if someone has been defaulting or diverting income. Generally, there is no provision for interest – TW v TM (Minors).

They then talk us through:

• Warrants of control – the bailiffs/ Enforcement Officers
• Judgment summons see Barclay v Barclay [2022] EWHC 2026 (Fam) in respect of the burden of proof;
• Receivers – as a last resort if there are no other methods and proportionate.
• Blight v Brewster Orders – compelling a party to draw from a private pension;
• Thwaite jurisdiction – the power to vary executory orders where unjust not to do so