In most cases the parties to a court Order dividing their assets following a divorce comply with the Order. What can be done if one party fails to comply?
There are several methods of enforcement that can be employed. The appropriate method of enforcement will vary from case to case and will largely depend upon the nature of the default, which could be anything from missing one spousal maintenance payment to failing to pay a lump sum, or sabotaging the sale of a property.
The usual methods of enforcement include:
One other method, often overlooked, is to enforce against the defaulting party’s pension. Although a pension is a different asset to money in the bank or money invested in property, there are certain circumstances where the pension can be targeted to enforce the debt.
The pension holder must be at least 55 years of age otherwise this method is not available as the pension cannot be taken if the party is under that age.
This method was considered in the Civil Court in a case called Blight -v- Brewster in 2012 but its principles do apply to family cases. In that case, the defaulting party had a pension which entitled him to draw down 25% as a lump sum. He argued that he could not be forced to make an ‘election’ to take the lump sum because it was not in his financial interests to do so.
On appeal, the Judge commented that he should not be able to hide assets in a pension fund when he had a right to withdraw monies needed to pay the other party.
The other party successfully obtained a Third-Party Debt Order against the pension fund and the Judge made Orders which allowed the other party’s solicitor to drawn down the lump sum on the defaulting party’s behalf. The judge also ordered the defaulting party to sign the necessary paperwork to allow this to take place.
In cases where this method of enforcement is used but the amount of the pension that can be taken as a lump sum is insufficient to meet the entirety of the debt, the enforcing party can also apply for an Attachment of Earnings Order against the pension income, which would require the pension company to pay a part of the monthly income to the enforcing party until the debt was repaid in full.
For more information regarding financial remedy, please contact our family team here.
The above is meant to be only advice and is correct as of the time of posting. This article was written by Michael Sheville, Partner in the Family Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of October 2022.