The government has agreed to improve the enforcement of financial orders in response to a Law Commission report titled ‘Enforcement of Family Financial Orders’ published on 14 December 2016.
In a letter to the Commission, Justice Minister Lucy Frazer has said the government will bring forward non-legislative measures to improve the enforcement system, whilst considering further reform in the future.
This includes the introduction of a free-standing comprehensive procedure for enforcement within the Family Procedures Rules 2010, introducing and/or amending guidance notes for users and practitioners about the court process, streamlining operational processes as far as possible, exploring operational changes in relation to types of judges for dealing with enforcement applications and amendments to court forms or the introduction of new court forms.
John Darnton, family and matrimonial consultant at law firm Bircham Dyson Bell said: “All family practitioners probably agree that the procedure to enforce financial orders is a mess and this undoubtedly enables unscrupulous non-payers to ‘play the system’. Anything that can be done to streamline the system and to make it more intelligible are to be welcomed. There should be a simple and straightforward way for the beneficiaries of orders to ensure that they are complied with.
“Securing a financial order in the first place can often come at a huge financial and emotional cost. Many people do not have the energy or money to embark on further proceedings to get what they are owed. Sadly changing the rules will only be part of the solution. Court closures and other cut backs mean that progress through the court can often be at a snail’s pace. Money will need to be invested in the whole infrastructure if it is to operate as intended by the rule makers.”
Similarly, Toby Hales, family partner at law firm Seddons said: “These proposed reforms are no more than a sticking plaster. Yes, there may be the odd person who feels more confident going to Court to enforce financial orders following these changes. But they ignore the elephant in the roothe problem is that people in this situation very often cannot afford legal advice (because of the breach of the order itself), and legal aid is now unavailable in almost all family cases. Clearer Court forms are no substitute for expert advice and representation from a matrimonial solicitor.”
Joanna Pratt, partner and head of family at Kent-based law firm Thomson Snell & Passmore LLP, added: “Family law practitioners, and individuals who have been struggling to enforce financial orders made within family proceedings, will be pleased to read the letter which the government has sent responding to the recommendations which the Law Commission made a year and a half ago.
“At the moment, the regime for enforcing financial orders made in family proceedings is complicated, disjointed, and for a lay client almost impossible to navigate. Some of the changes which the Law Commission recommended do not require an Act of Parliament, but can be dealt with by way of a change to existing rules. However some of the recommendations of the Law Commission, including to introduce so called coercive orders (where the defaulting party could for example be disqualified from driving, or prohibited from travelling outside the UK) would require a new Act of Parliament, and will therefore take longer to implement.
"Bearing in mind that it has taken a year and a half for the government to respond to the Law Commission’s recommendations, any substantive changes to the existing legislation, or indeed procedural rules, will probably not happen for some considerable time.”
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