ENGLAND & WALES Law and Practice Contributed by: Alex Carruthers, Oliver Heeks and Sian Brooks, Hughes Fowler Carruthers
partner following a breakdown of their relation - ship. If the parties have children, however, then a party may apply for provision under Schedule 1 to the Children Act 1989 (the “CA 1989”) in circum - stances where provision courtesy of the Child Maintenance Service (CMS) is inadequate. Any order under Schedule 1 must be for the ben - efit of the child; however, periodical payments, lump sum orders, and transfers and settlements of property are possible. An engaged party or formerly engaged party may seek to have their property rights deter - mined under the Married Women’s Property Act 1882. However, they do not have the protection provided by the MCA 1973. Cohabitants do not obtain additional rights by virtue of the length of cohabitation. The fact that parties who have been together for many years do not obtain legal protections is a source of controversy in the Family Court. 2.7 Enforcement Methods of Ensuring Compliance There are a number of tools at the court’s dis - posal to ensure compliance with a financial order – principally, the following. • Attachment of earnings – this method is typi - cally used to ensure compliance with mainte - nance obligations by the deduction of money directly from the debtor’s earnings. • Warrant of control – a warrant of control authorises a county court bailiff to try to take control of the possessions of the debtor, pro - vided they are given seven clear days’ notice. This method can be useful where the debtor has possessions of sufficient value to meet the debts.
• Third-party debt order – this is an order of the court that freezes money that might otherwise be paid to the debtor. • Charging order – if a charging order is granted to a creditor, the debtor cannot sell their property without discharging the debt through the net proceeds of sale. • Judgment summons – this is an application for a committal order. • Order for sale – where the judge is concerned that a party will not pay the other party a lump sum owing to historic non-compliance with court orders, the judge’s final order may be for a property to be sold to prohibit the paying party from being able to delay paying the receiving party monies awarded. International Enforcement of Financial Orders The enforcement of a foreign financial order in England and Wales is permitted if the order was made by a country that is party to a convention to which the UK is a signatory and the order is one covered by the treaty. Furthermore, a party may be able to use the Part III jurisdiction described in 2.1 Choice of Juris- diction (Financial Claims After Foreign Divorce) to enforce orders if that is applicable. 2.8 Media Access and Transparency Transparency is an issue in the Family Court owing to the inherent conflict in many cases between Article 8 of the Human Rights Act, which protects the right to respect for parties’ private life, and Article 10 of the Human Rights Act, which protects freedom of expression and the principles of open justice. Accordingly, there is a lack of consensus among judges about the best approach to this issue, as well as a lack of uniformity as to the extent that the press should report on cases.
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