Pursuing a breach of property orders in family law
A client recently asked about her family law situation and her former partner: “He ignores the family law court orders and is eight months overdue with last $20K, is it worth pursuing the breach?”
The short response to the question posed above is “yes”. Given the monetary value involved, the existence of court orders and the complexity of the enforcement process, at the very least it is worth obtaining some legal advice with regard to the breach and which method of enforcement is most appropriate in your circumstances.
This will give you the opportunity to open dialogue formally with your ex-partner (through your solicitor) with regard to the breach and seek that the breach be rectified, either through immediate compliance with the orders or by an alternative agreement being reached between you, avoiding the necessity of utilising the court system.
Is there a reasonable excuse for the breach of court orders?
Consulting a lawyer is important, as it allows you to receive advice as to whether the court may determine that there is a reasonable excuse for the breach in the event that enforcement is sought through the court system.
In the event that no reasonable excuse is given, and/or your ex-partner is refusing to pay, listed below are some of the avenues available to you in recovering the money owing.
Third Party Debt Notice
A Third Party Debt Notice is a document seeking that a third party who you allege owes money to your ex-partner, for example an employer who pays your ex-spouse a wage or a bank which is holding funds on deposit, pay that money to you to satisfy the debt owing to you.
A Third Party Debt Notice is filed at court, along with an affidavit outlining the circumstances surrounding the debt owing.
Enforcement Warrant – Seizure & Sale of Property
An Enforcement Warrant is an order made by the court that your ex partner’s property is seized and sold by the sherriff in order to pay back the debt owing to you. In order to seek an enforcement warrant, you must file an “Enforcement Warrant – Seizure & Sale of Property” Application, accompanied by an affidavit outlining the circumstances surrounding the debt owing, as well as an undertaking that you will meet the expenses of your proposed enforcement officer (sherriff).
You may be directed to attend an Enforcement Hearing prior to the making of any such warrant. In addition, you will also be seeking to claim interest plus costs.
Filing an application in a case and accompanying affidavit outlining the circumstances surrounding the debt owing and the breach is a prerequisite to seeking that the matter be brought back before the court for the purposes of an Enforcement Hearing.
At the Enforcement Hearing, based on the evidence produced by both parties, the judge may make orders relating to ascertaining the total amount owing, immediate or periodic payment, prevention of disposal of property, stay of orders relating to the amount owing, costs etc.
An “Application – Contravention” is filed alongside an affidavit outlining the circumstances surrounding the debt owing. An “Application – Contravention” is separate to the other enforcement avenues listed above, in that it seeks an order from the court imposing a punishment or consequence on a person in breach of orders.
After considering the application and any response, the court may enforce or vary existing orders, put a person on notice that if they continue to breach orders they will be punished, or punish a person by way of fine or even imprisonment (ordinarily only after all other options have been exhausted).