Enforcement of overseas financial orders
If you are divorcing overseas, it is important for you to consider whether any financial settlement can be enforced and implemented in the UK.
If you are divorcing overseas and you and/or your spouse have a current or prospective connection with the UK, it is very important for you and your overseas advisor to consider at an early stage whether any financial settlement can in fact be enforced and implemented in the UK as intended.
We explore some common scenarios:
You seek and obtain maintenance provision as part of your overseas settlement but subsequently relocate to the UK. What happens if your spouse stops making the payments?
In broad terms for EU member states the order will be recognised and enforceable in England and Wales (either under the EU maintenance regulation if it is pre-Brexit or under the Hague Convention (save for Denmark) if it is post-Brexit.
For non-EU countries the ability for the UK to recognise and enforce a maintenance order will depend upon whether an international treaty, convention or agreement exists with that country. For example, the UK has reciprocal arrangements with over 100 countries who are fellow REMO countries (REMO stands for Reciprocal Enforcement of Maintenance Orders). Some example REMO countries are the United States, South Africa, Australia and New Zealand. It is important for your overseas legal advisor to work in conjunction with a specialist UK family solicitor to ensure that once the order is recognised under the REMO process, you are properly and promptly represented in the UK during the enforcement process itself. Your solicitor can also help you understand the scope of your claim as countries have different age limits for child support, for example.
For non-REMO countries the position is more complex. For example, Russia, Japan, the UAE and many African and South American countries have not endorsed REMO arrangements. As a result enforcement of orders from these countries can be difficult and early advice is even more vital.
One or both of you live overseas but have property or other assets in the UK that will be transferred to you or sold as part of any financial settlement. Will the overseas order operate effectively in the UK if your spouse refuses to co-operate with the transfer or sale?
This will depend upon whether the transfer or sale proceeds are required for the purpose of you providing for yourself and/or your children. If it can be construed in this way then it may be possible to enforce the order with relative ease under the maintenance arrangements detailed above because maintenance is not necessarily limited to periodical payments between REMO countries. However, a transfer of property or lump sum from a sale that are solely related to compensation or dividing property between spouses will not be considered a maintenance obligation. In those circumstances the enforcement procedure is more complicated. As with maintenance orders, enforcement and recognition will be further complicated if the overseas order is from a non-REMO country.
It may be that there are UK pensions, particularly if one or both of you lived and worked in the UK for a period. If your overseas settlement looks to share those pensions (i.e. transfer a portion to the other spouse) will the UK pension provider recognise a foreign order?
Most pension providers in the UK will not automatically recognise an overseas order. You will often be required to obtain an English court order to give effect to the pension sharing order. The international family team at Weightmans can assist with obtaining such an order.
Provided it is possible to secure recognition of the overseas order in the UK the following enforcement options will be available:
Attachment of earnings
This is an order directed to the paying party’s employer so that the sums owed are re-directed at source to you from their net pay.
Third party debt order
This order directs a third party to pay funds directly to you rather than the paying party. Examples of this include a bank where the paying party has funds in an account.
Warrant of control
This authorises bailiffs to seize money or goods from the paying party.
This places a charge over the paying party’s property so that when it is sold, you will be paid from the proceeds.
This can lead to imprisonment if the payer continues to neglect their financial obligations.
Where an order deals with UK assets or income there may also be tax issues to consider and so again, it is important to seek UK advice at an early stage to avoid unintended consequences.
If you would like further support on any aspects of enforcing an overseas financial order, please get in touch with our expert International family lawyers.