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You have gone through the trouble of obtaining property settlement orders, either through negotiations or Court, and your ex is now not playing ball. You need to take action to ensure that your ex complies with the orders and you receive what is rightfully yours. But, how?
If you were well represented, your lawyer may have included some default provisions in the orders themselves, such as the sale of an asset, so your first point of call would be to take a closer look at your orders. If there are no default provisions, or the ones included don’t help, then your recourse will depend on the nature of the order you are seeking to enforce.
The Law on Enforcement on Financial Orders
Before approaching the Court to enforce an order, you should consider obtaining legal advice. Part 11.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules (Cth) 2021 (the “Rules”) sets out the rules which apply to the enforcement of property settlement orders.
What if your ex is Refusing to Sign a Document Required by your Orders?
If your ex is refusing or failing to sign a document required to implement the orders, for example the documents necessary to transfer ownership of your home, Section 106A of the Family Law Act (Cth) 1975 allows you to seek an order from the Court for another person be appointed to sign the document on behalf of your ex, including the Registrar of the Court.
You will need to prove to the Court that you have taken steps to facilitate the signing of the document by your ex, and their failure or refusal to do so.
What if your ex is Refusing to pay to you Monies Required by the Orders?
Firstly, before potentially throwing good money at bad, you may wish to better understand your ex’s current financial circumstances. This may help you decide whether, and how, to enforce the order.
To obtain this information you can:
- Require that your ex provide to you a written Financial Statement within 14 days; and/or
- Make an application to the Court seeking orders for your ex to disclose information and provide documents relevant to their financial circumstances.
Your ex will have committed an offence if they fail to provide a Financial Statement, disclose required information or provide the required documents. An offence carries a penalty of 50 penalty units (which at the time of writing this article equates to a $11,100 fine).
If you chose to enforce an order under which monies are owing to you that requires more than someone else signing a document on their behalf, the options available to you are:
- An Enforcement Warrant;
- A Third Party Debt Notice;
- An order for Sequestration of property; and/or
- An order for the Appointment of a Receiver.
An Enforcement Warrant enables you to nominate an Enforcement Officer, such as the Marshal of the Federal Circuit and Family Court, to seize and sell your ex’s property under Division 11.1.3 of the Rules and pay what is owing to you from the net sale proceeds.
Third Party Debtor Notice
You can issue a Third Party Debtor Notice under Division 11.1.4 of the Rules to your ex’s employer or bank (or anyone else that owes your ex money) requiring them to pay that money to you rather than to your ex to cover the amount owing.
Sequestration of Property
Under Division 11.1.5 of the Rules, the Court can temporarily place your ex’s investment property or business in the hands of a Sequestrator who can then collect rent or profits from a business and use those monies to pay to you the amount owing.
Division 11.1.6 of the Rules enables the Court to appoint a Receiver over your ex’s income or property, entitling them to receive any income payable to your ex and use it to pay you the amount owing.
Whilst it is the last place you want to find yourself having obtained property settlement orders, it is comforting to know that there are options of enforcement available to you. The right option will depend on the type of order you are seeking to enforce and what your ex’s finances look like at the time of enforcement.
You should consider obtaining legal advice and assistance when seeking to enforce an order.
By Rebecca McLeod, Practice Leader & Janine Goodwin, Senior Associate at Watts McCray Lawyers
Join Rebecca and Janine at 8.00pm on Wednesday, 29 March, where they will discuss the law in Australia and the process of a property settlement in the context of family law. Event details here.