Curfews and Travel Bans – The New Face Of Family Law Enforcement?
Curfews and a foreign travel ban, these are just 2 of the restrictions recommended by the Law Commission for spouses that don’t pay up on their financial settlements.
Can't pay or won't pay, the law is aiming to find solutions.
Solutions We Have Now
Those who refuse to pay their divorce settlement may be subject to strict new rules if the recommendations made by the Law Commission
are implemented following the consultation. We've commented previously on the difficulties in securing payment of monies ordered in a divorce settlement
Currently, there are limited measures available to a husband or wife whose ex decides not to pay, which can include imprisonment or a suspended prison term. Due to the high standard of proof needed to prove wrongdoing in this situation, it can be extremely difficult to bring a successful case. These are also remedies that a former spouse may not wish to use, particularly where there are children involved. For this reason these types of remedies are often not used.
This can then leave an ex-partner feeling there are no realistic or appropriate remedies.
It is due to this that new measures are being put forward by the Law Commission. Disqualification from foreign travel, disqualification driving and curfew orders were all recommendations made by the Commission to impose on ex- spouses that don't pay up.
None of these orders are intended to impact on that person's ability to earn a living as this would defeat the object of making such an order. All 3 of these proposed orders are already provided for but not in force in child maintenance legislation so it would just be a matter of enforcing them in this remit as well.
Harsh But Necessary?
It may seem harsh but families, especially those with children, can suffer a great deal when family financial orders are not complied with following a divorce. This is worrying especially when 3 out of 4 divorces now feature a family financial order
More often than not, the lack of payment usually boils down to can't pay or won't pay. To determine between the two, the courts would be able to apply to HMRC for information about employment status and earnings. Further information could also be obtained from banks or building societies following a court order, the information would then be passed onto the other spouse.
Carol Chrisfield, our Family Law Solicitor based in Bristol
, commented on these changes: "Enforcement of financial orders can be difficult where the other person is obstructive and sadly there are some cases where this happens. There are steps that can be taken to enforce orders and we are able to help and give advice on the best steps to take should this be necessary."
Carol believes that, in reality, these new enforcement powers may continue to be under used where there are children involved. A former spouse may not wish to do anything which could potentially impact on the relationship between the children and their parent, for instance by preventing the children being able to take a holiday abroad with their mother or father.The consultation on the Law Commission proposals has now opened, and will run to July 11, its aim is to simplify and clarify the law, whilst looking to make existing solutions more effective.