You’ve achieved your aim and secured a spousal maintenance or costs order from the court – end of story, happy ever after – right?
But what if the debtor then doesn’t pay? What are your options?
Set out below is a brief guide to the next steps and methods of enforcement available to you as creditor.
The court will not automatically deal with enforcement of a judgement, it is down to you, as the creditor, to apply to the court.
The first question you need to ask is whether the debtor has the means to pay the debt, for example: –
- Are they employed?
- Do they own any property or significant assets?
- Do they have a bank account?
- Are they bankrupt or in the process of being declared bankrupt?
You may already know the answers to some of these questions but if not you can: –
- Ask the debtor to supply this information voluntarily or apply to the court for an order
- Check with the Land Registry
- Check the Insolvency Register
- Instruct an enquiry agent
If you establish that the debtor does have the means to pay then the enforcement options available to you are: –
- Writ of Control and warrant of execution
- Writ or warrant issued by court
- Enforcement Officer can take control of and sell debtor’s goods (some exemptions)
- Notice to debtor not required
Pros – Quick and simple, no court decision required
Cons – debtor needs to have goods of sufficient value to meet debt
- Third Party Debt Order
- Freezes sums owed by a third party to the debtor, i.e. a bank
- Two stage process but can be relatively quick
- Following final order the third party has to pay you the creditor directly
Pros – Quick, debt paid straight from third party not debtor
Cons – evidence of third party debt can be hard to find
- Charging Orders and Orders for Sale
- Secures the judgement debt over the debtor’s beneficial interest in land.
- Debtor cannot sell the land without paying the judgement debt first.
- Interest continues to run on the judgement debt.
Pros – interest continues to accrue on the debt until paid
Cons – slow, debt paid on sale of property not right away, there may not be enough equity in the property to meet the debt and other creditors will take priority on the sale such as the mortgage company.
- Attachment of Earnings
- A proportion of debtor’s earnings is deducted by their employer and paid to you.
- Court will decide how much debtor can afford to pay.
Pros – inexpensive and easy to obtain, payments direct from employer not debtor
Cons – debtor has to be in employment, can take a long time to pay off debt
- Insolvency Proceedings
- Available if judgement debt is more than £5,000.00
- If bankruptcy order made then debtor’s assets will be collected in and distributed amongst all their creditors.
Pros – the threat of these proceedings is often enough to ensure a debtor pays
Cons – expensive and time consuming with no guarantee of recovery
If you are concerned that a debtor may be attempting to dissipate their assets to avoid paying the judgement debt then you can apply to the court for an order referred to as a freezing injunction.
*the above guidance is based on the debtor being an individual and there will be some differences to methods available if you are dealing with a debtor company.
Emma Murphy – rhw Solicitors LLP
Please note this is a brief guide and for more information or any advice in relation to enforcement of a judgement debt, please contact rhw law firm in Surrey on 01483 302000 or email email@example.com