A client recently asked about her family law situation and her
former partner: "He ignores the family law court orders and is
eight months overdue with last $20K, is it worth pursuing the
The short response to the question posed above is
"yes". Given the monetary value involved, the existence
of court orders and the complexity of the enforcement process, at
the very least it is worth obtaining some legal advice with regard
to the breach and which method of enforcement is most appropriate
in your circumstances.
This will give you the opportunity to open dialogue formally
with your ex-partner (through your solicitor) with regard to the
breach and seek that the breach be rectified, either through
immediate compliance with the orders or by an alternative agreement
being reached between you, avoiding the necessity of utilising the
Is there a reasonable excuse for the breach of court
Consulting a lawyer is important, as it allows you to receive
advice as to whether the court may determine that there is a
reasonable excuse for the breach in the event that enforcement is
sought through the court system.
In the event that no reasonable excuse is given, and/or your
ex-partner is refusing to pay, listed below are some of the avenues
available to you in recovering the money owing.
Third Party Debt Notice
A Third Party Debt Notice is a document seeking that a third
party who you allege owes money to your ex-partner, for example an
employer who pays your ex-spouse a wage or a bank which is holding
funds on deposit, pay that money to you to satisfy the debt owing
A Third Party Debt Notice is filed at court, along with an
affidavit outlining the circumstances surrounding the debt
Enforcement Warrant – Seizure & Sale of Property
An Enforcement Warrant is an order made by the court that your
ex partner's property is seized and sold by the sherriff in
order to pay back the debt owing to you. In order to seek an
enforcement warrant, you must file an "Enforcement Warrant
– Seizure & Sale of Property" Application,
accompanied by an affidavit outlining the circumstances surrounding
the debt owing, as well as an undertaking that you will meet the
expenses of your proposed enforcement officer (sherriff).
You may be directed to attend an Enforcement Hearing prior to
the making of any such warrant. In addition, you will also be
seeking to claim interest plus costs.
Filing an application in a case and accompanying affidavit
outlining the circumstances surrounding the debt owing and the
breach is a prerequisite to seeking that the matter be brought back
before the court for the purposes of an Enforcement Hearing.
At the Enforcement Hearing, based on the evidence produced by
both parties, the judge may make orders relating to ascertaining
the total amount owing, immediate or periodic payment, prevention
of disposal of property, stay of orders relating to the amount
owing, costs etc.
An "Application – Contravention" is filed
alongside an affidavit outlining the circumstances surrounding the
debt owing. An "Application – Contravention" is
separate to the other enforcement avenues listed above, in that it
seeks an order from the court imposing a punishment or consequence
on a person in breach of orders.
After considering the application and any response, the court
may enforce or vary existing orders, put a person on notice that if
they continue to breach orders they will be punished, or punish a
person by way of fine or even imprisonment (ordinarily only after
all other options have been exhausted).
To guarantee some of his inheritance, he asked the court to make a "notional estate" order to reflect the joint assets.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).