Enforcement Order article with image of a gavel.

13 Aug Enforcing a court order during divorce. What to do if your ex will not comply

Posted at 13:11h in Family Law by

When a Family Court order is made, it is intended to provide certainty for everyone involved. Both parties are expected to follow the terms of the order, whether it relates to finances, property, maintenance or arrangements for children. Although circumstances can change, a court order remains legally binding unless it is varied or replaced by a further order of the Court.

Unfortunately, it is not uncommon for difficulties to arise after an order has been made. One person may refuse to make maintenance payments, delay the sale of the family home, fail to transfer money or property, ignore deadlines, withhold financial information, or breach child arrangements.

If this happens, it may be necessary to apply to the Court to enforce the order.

Katharine Scoot, family law solicitor at HRJ Foreman Laws Solicitors explains what enforcement means and when to use it.

What does it mean to enforce a court order, and when might it be needed?

Enforcement is the process of asking the Court to take further action when one party has failed to comply with an existing court order.

In divorce and family proceedings, enforcement is most often needed where your former spouse or partner does not do something the order requires them to do. Although in some cases they may continue doing something the Court ordered them to desist from.

It might include failing to pay a lump sum, missing spousal maintenance payments, refusing to sign documents, delaying the sale or transfer of a property, failing to provide financial disclosure, or breaching a child arrangements order in Children Act proceedings.

The purpose of enforcement is to make the original order effective. The Court may direct the non-compliant party to take the required step by a set deadline. In more serious cases, it may make additional orders, impose financial consequences, or use stronger enforcement powers.

How do I enforce a family court order?

The first step is to look carefully at the order itself. Enforcement depends on the exact wording of the order. In some cases, if the existing order is unclear or no longer workable, it may be necessary to consider whether the order should be varied rather than simply enforced. A variation of an order can often take place with the consent of the other party.

The Court will need to see that the order is clear, that the other party knew what they were required to do, and that they have failed to comply.

It is important to gather evidence of the breach. This may include emails, text messages, bank statements, missed payment records, correspondence with estate agents or conveyancers, records from a parenting communication app, or any documents showing that a deadline has passed without compliance.

In many cases, the first step is to send a formal written request before making an application. This can be sent by you or by a family law solicitor. The letter should remind the other party of the terms of the order, identify the breach, request compliance by a specific date, and explain that an enforcement application may be made if they do not comply.

A solicitor’s letter can be helpful where the breach is serious, repeated, financially significant, or where previous informal messages have been ignored. It can also ensure that the request is clear, appropriately worded, and focused on the remedy the Court is likely to consider.  This can sometimes resolve the issue without the need for a further court hearing.

If the matter is not resolved, an application can be made to the Family Court. This can be done by you directly as a litigant in person, or with the assistance of a family law solicitor.

The correct application will depend on the type of order being enforced. A solicitor can help identify the correct procedure, prepare the application and witness statement, organise the evidence, and ask the Court for practical orders that address the breach effectively.

Once the application is issued, the Court will list the matter for a hearing to consider the application.

Enforcing financial orders in divorce

Financial orders made during divorce can cover a wide range of issues. They may require one party to pay a lump sum, transfer property, sell the family home, pay spousal maintenance, share a pension.

If a financial order is not followed, the Court has a range of enforcement powers. The appropriate remedy will depend on what has gone wrong.

Where money is owed, the Court may be asked to make orders to recover the debt. This may include attachment of earnings, where money is deducted directly from wages, or a third-party debt order, where money held by a bank or another third party may be redirected to satisfy the debt. In some cases, a charging order may be sought over property owned by the debtor.

Where a party refuses to cooperate with the sale or transfer of property, the Court can make practical orders to move the process forward. This may include orders regulating the sale, requiring documents to be signed, or permitting another person to sign documents on behalf of the non-compliant party.

In more serious cases, the Court may consider stronger measures, particularly where there has been deliberate refusal to comply with a clear order.

Enforcing spousal maintenance arrears

The Court can generally enforce spousal maintenance arrears dating back to 12 months.

If arrears are more than 12 months old, enforcement may still be possible, but a separate application for the Court’s permission will usually be required. The Court will consider the circumstances, including why enforcement was not sought earlier and whether it is appropriate to allow older arrears to be pursued.

Where missed payments are likely to continue, it may also be possible to ask the Court to capitalise maintenance. This means asking the Court to replace ongoing periodical payments with a one-off lump sum payment.

Capitalisation may be appropriate in some cases where ongoing payment arrangements are no longer reliable or where a clean break is achievable.

Maintenance enforcement can be particularly important where the receiving party depends on those payments to meet mortgage payments, rent, household expenses, or other essential outgoings.

What if my ex refuses to sell or transfer the family home?

Problems often arise where a financial order requires the family home to be sold or transferred.

One party may refuse to sign sale documents, delay communication with estate agents, reject reasonable offers, obstruct viewings, fail to complete mortgage paperwork, or refuse to vacate the property.

This can cause financial loss and delay, particularly where mortgage payments, insurance, repairs, or other property expenses are ongoing.

If the order is clear and the other party is obstructing implementation, the Court can be asked to make further directions. Depending on the circumstances, the Court may set a timetable for sale, determine how the property is to be marketed, authorise steps needed to complete the transaction, or make orders dealing with signature of documents.

Where delay has caused financial loss, it may also be possible to ask the Court to consider costs or other financial consequences.

Enforcing a Child Arrangements Order

A child arrangements order sets out where a child lives, when they spend time with each parent, and sometimes how handovers, holidays and communication should take place.

If one parent breaches a child arrangements order, the other parent can apply to the Court for enforcement.

A parent can apply directly as a litigant in person. However, legal advice from an experienced family law solicitor can be helpful where the breaches are repeated, the evidence is disputed, there are safeguarding concerns, or the existing order is unclear.

The Court will consider whether there has been a failure to comply with the child arrangements order and whether the parent in breach had a reasonable excuse. If the Court finds that the order has been breached without reasonable excuse, it can consider what steps are appropriate to restore the arrangements and promote the child’s welfare.

What about child maintenance arrears?

Child maintenance is often dealt with by the Child Maintenance Service rather than the Family Court. If arrears arise under a CMS calculation, enforcement will usually be dealt with through the CMS. If arrears arise under a court order for child maintenance, the order should be checked carefully, as the Court’s role may depend on the type of order made and whether the CMS has jurisdiction.

What evidence do you need to enforce an order?

The Court will need to understand what the order required, what happened, and why enforcement is being requested.

The most useful starting point is a clear chronology. This should set out the date of the order, the relevant clause, the deadline for compliance, what the other party failed to do, and what steps have been taken to resolve the issue.

For financial enforcement, bank statements, payment schedules, correspondence about missed payments, mortgage records, and solicitor correspondence may be important. For property issues, emails with estate agents, conveyancers, mortgage brokers and the other party can help show whether someone has been obstructing the process.

For child arrangements, records of missed contact, messages about handovers, parenting app records, and notes of what happened on specific dates may assist.

The evidence should be organised, accurate and focused.

Can you enforce an informal agreement?

If you and your former spouse have reached a private agreement but it has not been approved by the Court, it may not be enforceable in the same way as a court order. This is particularly important in financial matters.

A financial agreement reached during divorce should usually be recorded in a properly drafted consent order and approved by the Court to make it binding and enforceable.

The same applies to informal arrangements about children. Parents can agree arrangements between themselves, but if there is no child arrangements order in place, enforcement options may be limited. In this situation, it may be necessary to apply for a child arrangements order rather than an enforcement order.

If compliance is becoming an issue, it may be helpful to make an appointment with one of our solicitors to discuss whether an agreement can be formalised or whether a new application is required.

Can I stop complying because my ex breached the order first?

Court orders remain binding unless they are changed by the Court. One person’s breach does not allow the other person to ignore the order.

The best approach is to act promptly, keep clear evidence, and use the correct enforcement procedure.

Contact us today for help to guide you through the process.

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