Finances and Divorce-Enforcement of financial orders on divorce

Enforcement of financial orders on divorce

Our newspapers regularly report on judgments handed down following ex-wives’ multi-million pound claims on divorce. What the newspapers less often report on are cases where the ex-husband (and it usually is the ex-husband) has to make payment following a court order, but fails to do so.  

There are various options available on enforcement of non-payment, such as a reduction of money direct from an employer, freezing accounts, placing charges on properties   and charging interest as well as imprisonment. However, it is important that you seek a strategic divorce lawyer to advise how best to attempt to retrieve your financial share of the matrimonial pot, as such litigation can be expensive and the process can be slow.

Enforcement options can however become more difficult where there is no property or bank account in the jurisdiction, because the courts can often do very little. In addition to this, many of the wealthiest clients choose not to have assets their property assets in England and in their own name. Houses are owned through trusts and companies, bank accounts are in Liechtenstein, artwork is held in trust and this can cause an ex-spouse significant problems when it comes to taking control of assets in satisfaction of the terms of a financial order.

Of all of the possible options available to the Court on enforcement, the most draconian order is of course to compel an ex-spouse to prison for a short period. However, as Mr Prest's £17.5 million divorce battle shows (where Mr Prest had refused to pay his ex-wife maintenance), some husbands would rather risk prison than pay what they have been ordered to pay!

The difficulty some ex-wives can also face is that the ex-husband is no longer in the country and can't be sent to be prison. If this is the case, then the Court can only issue a warrant for his arrest which would be triggered upon his return to the UK (if he does return). This would essentially prohibit the ex-husband from returning to the UK or potentially Europe. While this may restrict an ex-husband’s freedom to travel and possibly his lifestyle, this option may be more preferable to paying over a multi-million pound sum to his ex-wife.

You may have recently read of the Court of Appeal’s judgment in the case of Mr and Mrs Aly, in which Mrs Aly was provided with all of the parties’ relatively modest assets on divorce, following Dr Aly’s move to Bahrain in 2012 whereby he essentially washed his hands of her and the parties’ children.

In this case, the Court criticized Dr Aly for purposefully defaulting on his financial responsibilities over a significant period of time and for paying nothing towards his wife and his children. The Court felt that he was unlikely to comply with any order to pay his ex-wife in the future.  As a result of the Court’s grave concerns, they considered it appropriate that Mrs Aly should be awarded the entirety of the matrimonial assets in order to ensure that she had future security and would free her from the need to enforce against a man who, as the Judge stated was “beyond the reach of enforcement in this country'. As far as avoiding any foreseen difficulties on enforcement are concerned, this is a remarkable case and the first reported case of its kind.

Strategic divorce lawyers will often advise that prevention is always better than a cure, and lawyers acting for the wives of such individuals will often advise accepting a lower amount by agreement, with payment up front, rather than litigating in the hope of achieving an order for a higher amount which may not translate into actual cash.

However with the exception of the case of Mrs Aly, many would argue that the family Courts are not strict enough in enforcing financial orders on divorce,  despite the court having wide-ranging powers to compel ex-spouses to adhere to the terms of their financial orders. Indeed, many ex-wives have spent years chasing their ex-husband's assets through the tax havens of the world, and have found that those jurisdictions are often unimpressed by foreign court orders and on some occasions have chosen to ignore them.

Whilst it is usual for the cases reported in the media to center around divorces which include cross jurisdictional high asset portfolios, the assets of the average family on divorce will not include assets across the world, and both parties will usually reside in this jurisdiction. Having said this, it has well been reported that the UK divorce rate is the highest in Europe and the highest rate of divorcees concern parties aged 40 and above with a most noticeable rise for divorce at retirement age.

Parties who are intending to divorce either upon or during their retirement are most likely to have accrued greater assets during the lifetime of their marriage. Whilst the average divorcee’s assets may only be a fraction of the wealth reported in the media divorce cases, it is important that spouses are aware of their rights of enforcement upon divorce and where possible, they seek to avoid any risk that a financial order may leave them exposed to enforcement problems and strategic divorce lawyers, such as Pinder Reaux & Associates can assist individuals with such matters. 

Rebecca Antoniou

Associate Solicitor

Pinder Reaux