What happens if you have financial orders but your ex won’t pay? So you’ve been through family court proceedings and have obtained financial orders in which the court has ordered your ex to pay you money or transfer marital property, but your ex is refusing to comply with the orders. Alternatively, you may have a Binding Financial Agreement (BFA) and yet your ex-partner is apparently unwilling to abide by its terms. What happens next?
The courts don’t automatically enforce orders, therefore if you can’t resolve your situation through reaching agreement or attending dispute resolution regarding the issue, it will be necessary for you to apply to the courts to make an order to enforce the original order.
When you have existing orders of the Family Court or a BFA, Chapter 20 of the Family Law Rules 2004 is relevant in explaining the process for enforcement action through the Family Court. If you don’t have proceedings in the Family Court, you can also apply through the Federal Circuit Court, and the process in this court is outlined in Part 25B of the Federal Circuit Rules 2001.
The law on enforcement is complex and it’s essential to get expert legal advice. But in general terms, the process for recovering money in family law can be described as follows.
To apply to the court for enforcement of orders, you may apply for an Enforcement Warrant. An enforcement warrant allows a nominated enforcement officer to enforce the warrant by seizing and selling property. You can also apply to the court to issue a Third Party Debt Notice, which requires a third party who may owe your ex money to pay that money to you instead of your ex. You can also apply to the court to make an order that your ex attends an Enforcement Hearing. At the hearing, the court may make orders to enforce the original order, such as sequestration of property, receivership or other orders as it deems appropriate.
There may be strategic advantages to making an enforcement application, whether because it may help apply pressure to your ex, or because it will enable you to discover financial information to determine, for example, whether compliance is likely or whether assets exist that can be seized.
However, when considering which option is most suitable to your circumstances and whether you should go ahead and make an application in relation to enforcement of orders, it’s always recommended that you obtain legal advice as to your rights and responsibilities, and the commercial reality of making the application in your circumstances. This means considering the legal costs involved against the likelihood of a positive outcome for you.
If you need assistance in relation to enforcing financial orders, please get in touch. We will help you establish what evidence will be necessary to gather and draft the appropriate documentation to obtain the best outcome in your situation. Where possible we will assist you in getting your ex to comply with the order without the need to return to court. For advice, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
You can read the Family Court’s factsheet on complying with orders and the enforcement of orders here: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/property-and-finance/complying-with-financial-orders/complying-with-financial-orders
Then contact our family law team.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.