The Law Society has called for simpler procedures to enforce family financial orders and said creditors should be armed with more information.
But the Society has opposed proposals from the Law Commission to introduce coercive measures for non-paying debtors, such as bans on leaving the country, driving disqualification or curfew orders.
Responding to a consultation on enforcement of family financial orders, the Society said current mechanisms for enforcement were set out in a ’disparate range’ of legislation and court rules which are complex to understand, particularly for litigants in person.
The onus should be on the debtor to justify why they cannot fulfil the order, the Society said, with the court making it obvious when the debtor has chosen not to pay or is not able to.
‘The enforcement process should be made easy and accessible so that creditors have the best possible chance of recovering monies owed,’ said the response. 'Arguably, potential ‘won’t pay’ debtors would be deterred from not complying with an order if they knew that effective enforcement action was likely to follow.’
The Society said the Law Commission should consider the use of High Court enforcement officers for ensuring payment of an order.
Creditors should be able to request at least two months' bank statements to show incoming and outgoings from the debtor’s accounts, with the defaulting party also required to explain why they have not complied with an order.
The Society said the order could set out the likely method of enforcement in the event of default and the consequences of a breach of the order.
But the response questioned whether it is ‘reasonable’ to suggest sending someone who has failed to comply with a family financial order to prison.
‘Recent guidance and judgments show that neither the government nor the judiciary believes that imprisoning debtors is a good way to retrieve a debt, or a proportionate punishment.’
The Society said it opposed the coercive measures proposed, suggesting they had the potential to create a ‘quasi-criminal jurisdiction’.
These measures, it was suggested, would be unlikely to work and courts would be unwilling to impose the sanctions because of the effects on people’s livelihoods and dependents.