Law Society calls for better enforcement of financial orders without jailing debtors

Published: 19th August 2015

The Law Society are calling for better enforcement of family financial orders but have opposed plans by the Law Commission to introduce punishments for debtors, such as curfews, driving disqualifications, bans on leaving the country and even imprisonment.

After completing a consultation on the enforcement of family financial orders, the Law Society have produced a report which says that the current measures for financial order enforcement are set out in a 'disparate range' of legislation and court rules and that information available to the public is not clear or easy to find.

They agreed with the Law Commission that the procedure for enforcing family financial orders should be streamlined to make them easier for the public to navigate, but also making it easier for creditors and the courts to access the debtor's financial information to help them understand whether they 'can't pay' or just simply 'won't pay', which will put more onus on the debtor to justify why they can't fulfil their financial order.

"The enforcement process should be made easy and accessible so that creditors have the best possible chance of recovering monies owed. Arguably, potential 'won't pay' debtors would be deterred from not complying with an order if they knew that effective enforcement action was likely to follow", the report said.

They acknowledge that whilst all family financial orders should be obeyed like any other form of court order and enforcing them should follow the same procedure for recovery as any other court debts, there is an extra level of complexity and emotion present in family law hearings that comes with the breakdown of an intimate relationship. The greater level of stress and wider impact on other dependants (such as children) in family law cases means that judges should take all these other aspects into consideration when creating the financial order, however these factors should be less relevant when it comes to the enforcement of the order.

One key difference in family financial orders over other financial orders is that the parties circumstances can change over a period of time, which can have a direct bearing on the continued relevance of the family financial order. The Law Society believe that it is of the utmost importance that all parties understand how to go about amending the order, based on their own or their ex-partners change in circumstances, as opposed to non-compliance of the family financial order.

The report concludes with a series of recommendations to the Law Commission, with one of the key suggestions being that the Law Commission should consider using High Court enforcement officers to ensure compliance with an order. They also believe that any family financial order should include a likely method of enforcement and the consequences in the event of non-compliance with an order.

However they disagreed that 'coercive measures' should be used and questioned whether it was 'reasonable' to use imprisonment as a form of punishment for non-compliance. The report said, "Recent guidance and judgements show that neither the government nor the judiciary believes that imprisoning debtors is a good way to retrieve a debt, or a proportionate punishment".

"We do not agree that coercive measures should be introduced without first seeing whether enforcement can be improved by making the existing remedies easier to use".

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