It would seem that the spotlight is never too far away from the world of Family Law at the moment. In its latest consultation drive the Law Commission is looking at Financial Orders and how best to enforce them. This is certainly a welcomed review and it’s time the views of the legal profession were sought to help assist in that reform.
Navigating clients through the legal complexities can be a challenge but even more so when you are faced with the possibility of obtaining nothing, or just half of an order, for your client. This can leave both the client and the solicitor despondent.
Enforcement of a Financial Order is, in my experience, virtually non existent. Most enforcement proceedings fall under the guise of the Civil Procedure Rules, which for most family lawyers are the province of their dispute resolution colleagues.
Ask any family lawyer or litigant in person how they would enforce an order that has been breached or partially complied with and their response is likely to be "write back to the originating tribunal and bring it to the attention of the judge".
This is unlike the current process for breaches of Child Arrangement Orders which can see the Applicant file a C79 form for enforcement and seek costs as well as sanctions. This approach is simple and easy to follow with detailed guidance. However, the trouble with this approach is that unfortunately Judges can be reluctant to enforce them. In most cases they like to ensure that the original order is ‘re activated’ for want of a better expression, and the enforcement application withdrawn. This can often lead to a sense of injustice for the Applicant.
A holistic approach needs to be considered with a view to reform the current enforcement process. It would be much easier to file an enforcement of an existing Financial Order, pay the fee and know that the tribunal would hear evidence about it.
Clearly caution is important, the process cannot be used as a mechanism to threaten or bully the Respondent whose circumstances may have changed since the original order was made. For example unemployment or inability to obtain a mortgage, all of which are subject to market forces rather than any lack of motivation on the Respondents behalf. A degree of financial intelligence would have to be adopted.
What strikes me in most financial matters is how lawyers structure their case. There is little point in getting to the end of a case and advise a client to seek agreement from the lender permission to transfer the home. This should be done from the outset in order to manage everyone’s expectations. If the answer from a lender is a resounding "no" then there is little point in seeking enforcement of a Court Order that was never achievable in the first place.
It will be interesting to see what the consultation brings to the forefront and what possible reforms may await this sector.