Enforcement - list of remedies

Procedure is vitally important when seeking the remedies below. See here for some 'tips and tricks'.

Charging order (FPR 2010, 33.25; CPR 1998, 73): grants a secured charge over the payor’s interest in property (ie up to the sum of monies owed to the payee).  The court may then order the sale of the charged property in default of payment.
Attachment of earnings (FPR 2010, 33.19; Attachment of Earnings Act 1971): provides for monies to be deducted at source from the payor’s earnings and to be remitted to the court.
Third party debt order (FPR 2010, 33.24; CPR 1998, 72): freezes monies in the hands of a third party (eg a bank) and provides for it to be paid to the payee.  Available for money judgements only where the payor carries on business in England and Wales.
Means of payment order (Maintenance Enforcement Act 1991): for periodical payments and lump sum orders payable by instalments where the payor is ordinarily resident in England and Wales.  Requires the payor to make the required payments by standing order/direct debit and to open an account for the purpose.
Warrant of execution/writ of sequestration (County Courts Act 1984; FPR 2010, 33.20-33.21; CPR 1998, 81): a warrant of execution enables the sheriff to seize the payor’s goods (up to the value of the sums due) and sell them.  Sequestration enables the possession of all the real and personal estate of the payor until they pay a specified amount into court or until the court orders to the contrary.  The court can also order the sale of sequestered assets.
General application for enforcement (FPR 2010, 33.3(2)(b); CPR 1998, 71): the payee may apply (in Form D50K) ‘for such method of enforcement as the court may consider appropriate’.  Following examination of the payor, the court can make any of the orders listed above. 
Committal by way of judgment summons (FPR 2010, 33.5-33.18; Debtors Act 1869, s 5): orders for maintenance can be enforced by an application for committal by way of judgment summons.  Due to the draconian nature of this remedy, strict rules govern applications for committal, to include the location of the court in which the application can be made, the evidence required in support, rules in relation to service (the application and evidence in support must be personally served on the payor not less than 14 days before the hearing) and the obligation on the payee to offer to meet the costs of the payor’s travel to and from court.
Order to obtain information (FPR 2010, 33.23; CPR 1998, 71): the payee can seek an order that the payor attends court for examination and produces any documents set out in the order.  It is an aid to enforcement, rather than a mechanism of enforcement itself, but it may provide the key to unlocking the payor’s Pandora’s box.  Failure to attend, produce the relevant documents or answer questions may lead to committal (although the payor may first be given a chance to purge his contempt).  The payee can rely on any documents obtained in support of an application for committal. 
Enforcement of undertakings (FPR 2010, PD33A): an undertaking may be enforced by committal for contempt as if an order of the court.  The undertaking must contain the prescribed wording in FPR 2010, PD33A and be signed by the person giving it.
Power to sign transfer documents (Supreme Court Act 1981, s 39; County Courts Act 1994, s 38): the court has the power to sign transfer documents if the party who should be signing neglects or refuses to sign.  The party seeking to enforce will need an order that the transfer document is to be signed by the relevant person before they can apply to enforce.
Power to order sale (Matrimonial Causes Act 1973, s 24a): the court can enforce a sale of property, irrespective of whether the order contains a liberty to apply clause. 
Interest on periodical payments (Magistrates Court Act 1980, s 94a;  County Court (Interest on Judgment Debts) Order 1991, SI 1991/1184; Judgments Act 1838, s 17): Interest is payable on orders made in the magistrates court and the High Court.  Orders for periodical payments made in the county court can be transferred to the High Court for enforcement and once transferred, interest will automatically accrue.  
Power to impound a passport: pending the disposal of a financial remedy claim, the court can impound a party’s passport if there is a probable cause for believing that the party is about to leave the jurisdiction unless restrained and that their absence from the jurisdiction will materially prejudice the financial remedy proceedings.  As it involves the restriction of liberty, the court’s power will be exercised with caution and any order is likely to be for the short term only (Bhura v Bhura [2012] All ER (D) 151 (Dec)).
Registration of maintenance order (FPR 2010, 32; FPR 2010, 34; Maintenance Orders Act 1950 and 1958; EU Maintenance Regulation etc): the provisions for enforcing maintenance orders made in England and Wales outside the jurisdiction and vice versa are complex and the remedies available will depend on where the order was made and where it is being enforced.
Enforcement of maintenance orders in the EU (EU Maintenance Regulation): the purpose of the regulation is to enable maintenance obligations across the EU to be directly enforceable.  Maintenance is broadly defined and can include capital and costs orders if they are intended to meet needs (Van den Boogaard v Laumen [1997] 3 FCR 493, Moore v Moore [2007] 2 FCR 353; Traversa v Freddi [2011] All ER (D) 289 (Feb)) and child maintenance calculations made by the statutory agency.  The UK (and Denmark) decided not to participate in the Hague Protocol on the law applicable to maintenance: a party seeking to enforce a maintenance order abroad (or vice‑versa) will therefore have to obtain (a) a declaration that the order is enforceable (from the court where the order was made) and (b) send their application for enforcement, declaration of enforceability, copy of the original order (and a translation of the above) to the Reciprocal Enforcement of Maintenance Orders Unit (REMO) in the country in which the order was made, who should then transmit it to the central authority in the member state in which enforcement is sought.  The methods of enforcement are then those available in the recipient state.
Enforcing other orders abroad: it is likely to be easier to enforce orders for the payment of money abroad (rather then orders for the transfer/sale of property).  Check whether there are any reciprocal enforcement treaties or regulations between this jurisdiction and the country/state in which enforcement is sought (eg the Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007 deals with the reciprocal enforcement of maintenance orders between the US and England).  The methods of enforcement (both remedies and procedure) will vary from country to country and will be determined by local law.  If you are likely to need to enforce abroad, seek local advice at the earliest opportunity.  The advice obtained may determine the strategy adopted in the proceedings in this jurisdiction.

 

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