What are the consequences for an ex-spouse if he or she does not pay following a court order?

Posted by Rachel Giles on
Last week the Law Commission released new proposals suggesting that ex-spouses who refuse to pay sums due following their divorce should be banned from travelling abroad.

The law surrounding financial orders, and the enforcement of them, is complicated and cumbersome. Whilst there are options available for divorcing couples to avoid applying to the court for their financial situation to be resolved, many individuals feel that they are presented with no choice. Ultimately, a court order is made, whether by agreement between the parties or imposed by the judge, setting out what will happen. This relies on the paying ex-spouse being trustworthy, reliable and honest. It can be the case that the payments are not made on time, or simply are not made at all. This leaves the receiving ex-spouse (and perhaps children) in a difficult position.

Whilst the court is able to impose sanctions on the non-paying ex-spouse, it can be a costly process, and relies upon the receiving ex-spouse having the means to pursue a further court process. This, more recently, has led to an increase in litigants in person, or ex-spouses simply not taking action to recover what they are owed. This is coupled with the recent removal of a remedy – the registration and enforcement of maintenance orders in the magistrate's court, provided for in Maintenance Orders Act 1958. It used to be possible to ask the Clerk to the Justices to enforce a maintenance order free of charge but this has recently been revoked by new legislation, arguably making the process more difficult and costly.

It may be that the new proposals have been put forward to try to counteract some of the difficulties that ex-spouses encounter when maintenance to which they are entitled, is not paid. They suggest that rules under the child support regime are replicated in part, giving judges the power to disqualify a non-paying ex-spouse from driving for a year. This, however, may have negative consequences if the ex-spouse needs to be able to drive for their job. This would need to be considered carefully.

A further power recommended is that judges should be able to confiscate UK passports, to be returned when the ex-spouse has made the payments required of them. It is hoped that this would incentivise ex-spouses. Under these proposals, whilst the receiving ex-spouse would still be required to make a court application, the Law Commission states that the recommendations are designed to be effective in producing compliance, and fair to both parties.

Whether the recommendations are taken forward is yet to be seen, however, it is clear that it is recognised that this is an area in which reform is required. You can read further into the recommendations here.

If you have any questions on financial orders or their enforcement, the Family team at Blake Morgan will be pleased to assist.

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Rachel is a Senior Solicitor in the Family team and is based in the Southampton office.

Rachel Giles
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023 8085 7222

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