Punishment befitting the crime?

The Law Commission has produced proposals for new measures to enforce payment of monies provided for within orders arising out of divorce proceedings. The recommendation is that tougher sanctions are needed to deal with defaulters having to comply with court orders.

One of the suggestions is that the defaulter could be disqualified from driving for a period but it is admitted, sensibly in my view, that this would be self-defeating, as it could well restrict the ability of a former spouse to earn the money needed to pay a lump sum or periodical payments order.

However, another recommendation is that the court should have the powers to confiscate UK passports, releasing them only once all outstanding payments have been made.

This is a draconian step and is clearly targeted at those with assets outside the jurisdiction who may otherwise regard themselves as invulnerable to enforcement. Preventing someone from travelling abroad to enjoy the benefits of their accumulated assets is perceived as being one way of bringing the defaulter to heel.

The proposals are similar in nature to those sanctions which have been put forward in a bid to enforce child maintenance payments. We have seen references to disqualification from driving, restrictions on travel, and even curfews. I have no doubt that someone who relies on regular payments to afford their own outgoings, or who needs the lump sum for the intended purpose of obtaining new accommodation and moving on with their lives, would be perfectly content to see the court granted any additional powers that would result in enforcement, however drastic those measures might be.

For them, these proposals would no doubt be far preferable to the alternative option of seeking to enforce arrears, often through the same mechanisms available to enforce court judgment debts in other civil proceedings. As any client who has pursued the enforcement route will confirm, it is a process which can be technical, cumbersome, and particularly stressful for the recipient to handle alone.

Having said that, I nonetheless feel there are some difficulties in the concept of using tough sanctions which relate to ways in which people choose to live their lives. Those proposals that look to restrict freedom of movement in particular could be seen to be severely disproportionate, and are themselves directly related to the extraction of money from the defaulter. From a point of principle, is it right to use the extensive powers of the state to back an individual into a corner, however deserving the recipient might feel that they might be?

It will be interesting to see what the justice secretary, Liz Truss, makes of the controversial proposals. But if the current system is not working, and the figure that we are being given for estimated unrecovered sums is correct (£15-20m per year), desperate measures might prove to be justified.

Paul Hunt is a senior associate at Kirwans

@KirwansLaw www.kirwanssolicitors.co.uk