As any family lawyer will know, forcing a recalcitrant party to comply with the terms of a financial remedies order can be as much of a headache as obtaining the order in the first place. If you are one of the burgeoning number of litigants in person the process must be a nightmare without the benefit of legal advice. I think few would disagree that there is a need to have the law governing enforcement of family financial orders simplified and improved.
And that, of course, is why the Law Commission has been charged with the task of reviewing the law on enforcement of family financial orders and putting forward recommendations for reform. I have previously written two posts here about the project, one in relation to the Commission’s proposals to improve the existing system and the other looking at the Commission’s proposals for new methods of enforcement.
The project is currently at the consultation stage. Last week The Law Society published its response to the consultation. I have been looking through what they have to say, and set out here a few thoughts.
The Law Society’s response begins with a number of trite generalisations, but it does say some interesting things, not all of which I agree with.
I do like the idea that orders for the transfer of the former matrimonial home in return for a lump sum and/or release from the mortgage should all have a default sale clause included. These orders are commonplace and, whilst many do have a clause stating that the property must be sold in default of payment of the lump sum by certain date or release of the transferring party from the mortgage, it would be very helpful if all orders had such a clause. That alone could significantly reduce the number of enforcement applications.
On the other hand, I disagree with what The Law Society says about the rule that maintenance arrears that are more than 12 months old should only be recoverable in special circumstances. The Society considers that the 12 month period “strikes the right balance”. As I indicated in the first of my earlier posts, I have never liked the rule, which seems to me to encourage non-payment. I therefore agree that the rule should be changed to make it more likely that all arrears will usually be payable, as they are under the child support system.
I also disagree with The Law Society in its blanket disapproval of the Commission’s proposed ‘coercive measures’. To recap, the Commission is proposing that three new orders be introduced, with the aim of ‘coercing’ the debtor to comply with the original order: disqualification from foreign travel, disqualification from driving and curfew orders. As I said in the second of my earlier posts, all three of these measures (or something similar) are already available or ‘in the pipeline’ elsewhere in the family justice system, so they are not entirely novel or without precedent. I don’t therefore see too much of a problem, although I’m not sure I agree with curfew orders. The Law Society, on the other hand, doubts that any of these measures would be effective – I say that they could be, so why not add them to the court’s enforcement ‘armoury’?
Lastly, I do agree with The Law Society’s views on the use of alternative dispute resolution (ADR) in the enforcement process. The suggestion by the Law Commission was that the Family Court should be able to adjourn enforcement proceedings without the parties’ consent for the purpose of the parties attempting to reach agreement using ADR methods, such as mediation. The Law Society quite rightly considers that there should only be an adjournment if both parties request it. ADR should only be used if both parties voluntarily agree to it, and there is a risk that the request to adjourn from one party may be a delaying tactic. In any event, ADR is not really likely to be appropriate in a situation where one party has failed to comply with a court order.