Beyond the Settlement

14/12/2012 11:57 GMT | Updated 12/02/2013 10:12 GMT

The ink is dry on the divorce settlement. The wife leaves Court comforted in the knowledge that her ex-husband has been ordered to make reasonable financial provision for her and their children's future in the form of a lump sum payment or periodic maintenance in addition to a monthly allowance for the children. The first month's allowance is paid on time, the second is a few days late, the third never arrives and, as for her lump sum payment, it is still nowhere to be seen.

Unfortunately, this scenario is played out all too often despite the existence of a Court Order confirming the payments due to the wife and the penalties (the most extreme of which is imprisonment) the ex-husband may face in the event of default. Assuming the wife has not breached any of the terms which may apply to her under the Order (typically, periodic maintenance ceases in the event of a prolonged period of cohabitation or re-marriage), the husband's financial obligations towards his ex-wife and his children continue, usually at least until the youngest child reaches 18 or 21 or ceases full time secondary or tertiary education.

Despite the law being on her side, the wife may feel she is powerless and be alarmed at the prospect of a bleak and financially insecure future. However, there is much she can do to remedy this unsatisfactory position.

The wife's first step would be to request from the ex-husband the immediate transfer of funds. In the absence of a satisfactory response, whether through his silence, refusal or claims of impecuniosity, her solicitors should then highlight the arrears with his solicitors. If the ex-husband persists in refusing to make any further payments, the wife's next step would be to proceed with an application to enforce the terms of the Order.

Assuming the ex-husband has breached the terms of the Order, it is usual for the Court to order an immediate resumption in the payments and for the arrears to be paid, including, if relevant, the lump sum payment to the wife. If necessary, the Court will order the sale of any of the ex-husband's assets to achieve this. Barring the ex-husband's bankruptcy, the Court has little tolerance for such breaches. The ex-husband should expect costs in favour of his wife, a serious reprimand from the Court and the renewed threat of imprisonment should he continue to ignore his obligations under the Order.

The wife may still be concerned about future breaches. It may therefore be prudent to apply for security over any assets the ex-husband may have. The wife may consider taking out an injunction to prevent the dissipation of any assets by her ex-husband. In addition, she may consider the benefits of an escrow account funded by her ex-husband giving her immediate access to funds should he be in default again.

Whilst further litigation may be unattractive to the wife, it is necessary always to follow the proper procedure to seek enforcement of the terms of any Order and to take appropriate legal advice. In this context, the wife's impeccable behaviour will be all the more laudable when contrasted with her ex-husband's blatent disregard for a Court Order.