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Enforcing Financial Orders: Welcome changes are on the horizon

Many couples breathe a sigh of relief once their divorce and financial proceedings are completed. However, this is unfortunately not the end of the road for some couples if one party refuses to abide by what was agreed. This is unfortunately not uncommon and it is all too often that an ex-husband or ex-wife stops paying the monthly maintenance, or refuses to sign conveyancing documents allowing for a sale of the family home.

Taking enforcement action can be a time consuming and costly process. Clients often have to come to terms with the uncomfortable realisation that they are going to have to spend yet more time and money going back to Court to enforce their financial order.

This unsatisfactory situation is not helped by the current enforcement law, which is in dire need of reform. The Law Commission has taken on the weighty task of reforming this area of the law. It has recently published a paper in which it seeks the views of lawyers or other interested parties on its proposals for reform. It conducted a survey to find out what people thought of enforcement law, and unsurprisingly the results showed significant dissatisfaction with the costs involved, the time it took for a case to progress through the system, and the ineffectiveness of certain legal remedies.

The Law Commission’s potential proposals for reform include:

  1. Disqualifying a debtor from driving for up to one year;
  2. Imposing a curfew on the debtor for up to six months;
  3. Making the debtor provide full financial disclosure so his or her financial position can be examined;
  4. Giving the Court the power to share a debtor’s pension (this only usually happens on divorce);
  5. Changing the current rule that arrears of maintenance over 12 months old are not usually recoverable.


The need for more information and support for litigants in person has also been acknowledged, since many understandably struggle to navigate the workings of the Court system and the law.

The outcome of the Law Commission consultation is yet to be seen but it is likely that strengthened proposals for enforcement will be welcomed by lawyers and litigants alike. As anyone who has suffered a loss of maintenance or had to endure continued arguments with their former spouse will know, positive changes to the current system in whatever form are a must.

© SA LAW 2017

Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them alone. You are recommended to obtain specific advice in respect of individual cases.