Once a Financial Consent Order is in place it is hoped that there will be no breach of that Order. However, it does sometimes happen and is important to know what you can do in this situation.
A Financial Consent Order is a document detailing the financial agreement reached between the divorcing parties. The Order is drafted by Solicitors and sent to the Court for approval. Once approved and sealed by the Court it becomes a legally binding document. The Government definition can be found here.
Any changes to the Order would have to be made by way of an Appeal, or application to vary and permission must be granted by the Court. However, this only happens in very exceptional circumstances.
It is important to note that any recurring payments such as Spousal Maintenance or Child Maintenance will need to be paid up until the time required in the Consent Order for example a child reaching a certain age or the benefiting party remarrying.
If the Consent Order has been breached by one of the parties the issue may be resolved between the parties themselves. If this is not possible then an application will have to be made to the Court for the Court’s involvement.
If a party fails to comply with the Consent Order, then they will be in contempt of Court, and this is a serious offence.
Unless it can be shown there is a good reason for the Consent Order being breached, the Court will usually enforce the terms of the Order.
We would advise you to contact your ex-spouse either yourself, if still in communication or through Solicitors to ascertain why your ex-spouse has not complied with the Order.
We would recommend sending a warning letter to the party not complying with the Order and putting them on notice that an application to enforce the Order will be made if the breach is not rectified or if a reasonable explanation for the breach has not been provided. If no response is received or a reasonable explanation has not been provided, then an application to enforce the terms of the Order can be made.
If the reason was due to an oversight or admin error on one occasion, then this could be rectified without having to apply to the Court to enforce the Order.
An example of this is if a Spousal Maintenance payment was delayed due to an administrative error and it meant the payment was late, there would be no need to apply to the Court if the payment was slightly delayed and this happened on a rare occasion.
However, if any term of the Consent Order is being broken repeatedly then this could be considered a serious breach and an application to the Court to enforce the Order may be required.
If the reason for breaching a Consent Order is considered reasonable by the Court, it may refuse to take enforcement action. Examples of this would be a late payment due to an administrative error, redundancy or illness which results in a reduced income. Each decision made is on a case-by-case basis.
A change in the breaching party’s financial circumstances, which is the reason for the breach, may mean the original Financial Order needs to be revisited to amend the terms of the Order.
Once an application is made, the Court will consider the application and the breach. Unless the breaching party can demonstrate they have a good reason for the breach, the Court will usually enforce the Order.
It is important to act promptly in relation to late maintenance payments. If arrears are over 12 months old, permission to enforce the payments will be required and Courts in the past have written off these debts. You want to avoid the risk of being in this position.
There are various ways in which enforcement action can be taken and this will largely be dependent on what terms of the Order have been breached.
The Court may order that a specified sum is taken directly from the wages of an ex-spouse known as an Attachment of Earnings Order. This would be relevant for cases where maintenance payments are required.
The Court could order that the debt is secured against a property owned by the ex-spouse known as a Charging Order.
A Warrant of Execution could be ordered, whereby a bailiff is appointed to seize goods of the party that breached the Order.
If the term of the order that has been breached relates to transfer of property and the other party has not signed the documents, the Court has the power to sign the documents required to execute the transfer.
The Court can also impose a fine or in more extreme cases imprison the breaching party.
It is important to note that every Financial Consent Order is different and if and how it is enforced is dependent on specific circumstances of the case.
If this happens to you, it is important to obtain expert advice as soon as you notice the breach. Here at Andrew Isaacs Law our expert lawyers can offer advice and support through this process. You can book a no obligation appointment for a fixed fee to receive tailored advice to you, consider your options and decide how you wish to move forward. Please contact us to book an appointment today.