ORDERS

The orders that are available are:

• Periodical payments.
• Lump sum, not exceeding £1000.
• Ancillary relief, that is finances after the divorce.
• The orders available for the spouses are periodical payments, also known as spousal maintenance.
• An order for decree nisi is needed before a final order for periodical payments can be effective.
• The orders may contain provision for automatic increases in the future.
• Maintenance ceases automatically on the death or remarriage of the recipient.
• Co-habitation does not automatically end maintenance, but most orders are drafted to provide that this would be the case.
• Periodical payments may be secured on a capital asset of the payer, therefore it is subject to a charge to enable enforcement of the periodical payment in the event of it not being paid.

Lump sum orders

A decree nisi or a decree of judicial separation or nullity is needed before a lump sum order can be made. Lump sum orders are often linked to property adjustment orders for sale of property. The lump sum order may be postponed if capital might be available in the foreseeable future, such as an inheritance.

Property adjustment orders

These are not effective until decree absolute and the property can include:

• land;
• personal property;
• money;
• shares;
• policies;
• house contents;
• contingent assets;
• choses in action – that insurance policies, shares, etc;
• private tenancies and council tenancies;
• property owned absolutely or to which the spouse is entitled in reversion.

Enforcement orders

The most common methods are:

• Warrant of execution. The sheriff or court bailiff will visit the property of the person owing the money and remove sufficient goods to satisfy the outstanding debts together with any additional costs incurred as a result of the action.
• Attachment of earnings. If the person due to pay is in full-time employment the court may make an order so that the debt is deducted from their wages, by their employer, and paid direct to the court.
• Oral examination. A court hearing will be set where the financial situation of the person owing the money is assessed and the court will suggest how the debt is to be paid. Failing to attend the hearing can lead to a warrant being issued and the person being brought to court.
• Charging order. The mother’s interests could be registered at the Land Registry, to prevent the property being sold without her consent. If and when the property is sold any debt outstanding will be paid from the proceeds.
• Third party debt order. If the father/husband is owed any money from a third party, such as a bank or building society, a court order can be obtained so that the third party pays indirectly. Alternatively any funds held in your bank or building society can be frozen.
• Bankruptcy. You can ask the court for a bankruptcy order. This is obviously a last resort, as the bankrupt will have to give up all their possessions of value and will have restrictions imposed on them concerning obtaining credit and carrying on a business.

Orders for sale

A court may require the sale of any property in which the parties have a beneficial interest. The order does not take effect until decree absolute is granted.

Variations are only available in fairly defined circumstances. They may be allowed special expenses to include such things as:

• care by the non-resident parent maintaining contact;
• costs attributed to long term illness or disability;
• debts incurred for the benefit of both parents or the child;
• maintenance element of boarding-school fees;
• mortgage payments on the home the non-resident parent and parent with care shared.

Pension orders

Pension sharing orders allow the court to split the pension fund at the time of the divorce with orders transferring ‘sharable right in a pension’. The spouse then acquires a fund in his or her own name or by transferring the sharable rights to another pension provider.

Orders available for children

There are orders available for children to cover:

• children’s welfare;
• clean breaks.

Disabled children

Where the child has a disability it is not taken into account by the agency, but the courts have power under Section 8 (8) to make an order, to supplement the maintenance calculation to meet the expenses attributable to that disability. Disabilities include:

• blindness;
• deaf or dumb;
• substantially or permanently handicapped by illness, injury or mental disorder;
• congenital deformity or such other disabilities as may be prescribed.

Maintenance agreements and consent orders

It is still up to the parents who are not claiming benefits to make arrangements for the children, outside the Agency and via the court.

Separation agreements

The parties may enter into a separation agreement, which is not a court order, but would be binding in the same way as any other contract. Since 1991 parents may still make separation agreements, but when benefit is involved it does not oust the jurisdiction of the Child Support Agency. Even if the agreement attempts to restrict the parties’ rights to make any further claims the Act requires a parent who is receiving benefit to co-operate with the agency.

Consent orders

This is a way an agreement between the two parties may be turned into a court order and they can apply for a consent order. This is a court order with agreed terms by both parties. It usually has all the overall agreement between the parties covering home, maintenance, children, etc. It normally has a clean break clause and in the past the parent would forgo maintenance entirely, or accept only nominal maintenance for themself and the children in return for a capital lump sum. Because the Agency is the only party that can now make calculations concerning maintenance any attempt by the consent order to exclude the Agency would not now be possible.