What recourse is available to you if your former spouse owes you money, or is refusing to sign transfer of ownership documents, or is refusing to transfer possession of an asset to you?
If there are existing Orders of the Family Court or you have a signed Financial Agreement (otherwise known as a “Binding Financial Agreement”), Chapter 20 of the Family Law Rules 2004 provides an outline of the process involved in seeking to enforce financial orders and obligations.
The Family Court can assist you in obtaining information about the financial circumstances of your former spouse. After assessing the information presented by both parties, the Family Court can then assist in recovering the money or the asset.
There are various ways that you can obtain financial information from your former spouse (set out in Rule 20.10):
- Provide your former spouse with written notice to complete and serve a Financial Statement within 14 days (which can be done with or without having filed an application in the Family Court).
- File a Form 2 Application in a Case in the Family Court, together with a supporting Affidavit, setting out the type of enforcement order you are asking the Court to make and the facts in support of your application. For example, the production of financial documents; a warrant to seize property; a third party debt notice (which might require a bank to transfer monies, or an employer to garnishee wages).
There are significant other factors that need to be addressed in an enforcement affidavit. We recommend that you obtain legal advice and assistance in preparing your material.
The Family Court will consider an enforcement application without either party needing to physically attend Court if all necessary financial information has been received by the Court. If not, a hearing date will be listed.
It is not the Family Court’s role to investigate on your behalf. At the hearing, either you or your lawyer will need to ask questions of your former spouse about their current financial circumstances (known as “cross-examination”). This may involve examining bank accounts, assessing the availability of property to be seized, and/or analysing transactions entered into to avoid their obligation to you. The Family Court will be interested in any reasons for failure to pay, including current income, availability of other property, debts and resources.
There are penalties available to the Family Court if your former spouse fails to provide financial information (set out in Rule 20.14). Your former spouse will be committing an offence if they fail to provide information or fail to attend the Court hearing (provided they had prior knowledge of the hearing date).
Orders that can be made to assist you
The Family Court has various powers (set out in Rule 20.07) and remedies (set out in Rule 20.05) to deal with matters of enforcement. For example, the Court can order the amount owing to be paid in full or by way of instalments by a certain date and can make orders about what is to happen if payments are not made. For example, to garnishee wages; to seize and sell property (including real estate); to order a bank to transfer money to you; to prevent expenditure of money from bank accounts or the transfer of property to third parties; payment of legal costs and interest.
The Family Court also has power to order fines for non-compliance with obligations arising out of enforcement orders (section 112AD of the Family Law Act (Cth) 1974 for married spouses and section 226 of the Family Court Act (WA) 1997 for de facto spouses), and to issue a warrant for arrest for non-attendance at an enforcement hearing. The Family Court also has power to imprison a party for contempt of Court.
If there has been a breach of the terms of a Financial Agreement (rather than an order of the Family Court) additional remedies are available for breach of contract and contractual damages.
Legal advice and assistance
At DS Family Law, we provide legal advice as to the evidence that is required for a successful enforcement application. We are adept at drafting persuasive material and providing strong representation.
We assist our clients in identifying the benefits of filing an enforcement application in the particular circumstances of their case. For example, to apply pressure on a former spouse; to find out if a former spouse has property available to ensure compliance; to determine income and other assets that might be seized and ultimately to finalise financial issues between the spouses.
We encourage our clients to make a commercial decision when weighing up the associated legal costs versus the various benefits to them in bringing an enforcement application.
The above does not constitute specific legal advice but is general information only.