The Law Commission has today opened a consultation on how best to enforce financial orders and have sought the views of the profession to help assist in the reform. This is a welcomed review for a number of reasons.
Frustratingly when a solicitor works hard only to eventually obtain nothing or not as much as we would have liked for our clients leaves both parties despondent, not to mention professionally embarrassed. Enforcement of financial orders are in my experience virtually non-existent certainly in the area of family law. 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 go about enforcing an order that had been breached or partially complied with and the only answer would be to write back to the originating tribunal and bring it to the attention of the Judge.
This is unlike the current processes of breaches of Child Arrangement orders which allows a client to apply for enforcement and seek costs as well as sanctions. This approach is simple and easy to follow with notes for guidance on completion of such documents. The trouble with this approach is that Judges are reluctant to enforce them and they like to ensure that the original order is reactivated for want of a better expression and the enforcement applications withdrawn. This can often lead to a sense of injustice for the applicant.
A holistic approach to enforcement needs to be considered with a view to reform the current process for enforcement of financial orders and the consultation process is welcomed in my opinion. How much simpler it would be to file an 'enforcement of existing financial order form', pay the fee and know that the tribunal would hear evidence about it?
Clearly caution is important; the process cannot be used as 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 is subject to market forces rather than any lack of motivation on the respondent’s behalf. A degree of financial intelligence would have to be adopted.
What strikes me in most financial cases is how lawyers go about the structure of the case. There is little point in getting to the end of the case then advising a client to seek agreement from the Lender permission to transfer the home. This should be done at the outset in order to manage everyone’s expectations. If the answer from the 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.