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Family law guide
Part of: Enforcement of Financial Court Orders
An attachment of earnings order tells an employer to take money from a person’s pay and send it to the court. The court then passes it on to the person owed. In family cases it can recover unpaid spousal maintenance, a lump sum or costs under a financial order. The family court makes it under section 1 of the Attachment of Earnings Act 1971. An employer served with it has to comply.
This guide covers both sides of the payslip. If someone owes you money under a court order, it explains which orders qualify and how to apply. If your employer is taking deductions, it explains how the court fixes the amount and how to change it. For the other ways of making an ex pay, see our guide to enforcing financial court orders.
Key takeaways
- The family court can attach earnings for unpaid spousal maintenance, lump sums and court-ordered child maintenance (1971 Act, Schedule 1).
- For maintenance, you can apply whether or not arrears have built up (Family Procedure Rules, rule 39.1).
- The court fixes what the employer takes and a level of pay that deductions must never cut into (s.6(5)).
- The court fee for the application is £39 (Family Proceedings Fees Order 2008, fee 12.5).
- Arrears more than 12 months old need the court’s permission to enforce (Matrimonial Causes Act 1973, s.32).
Maintenance that stopped arriving, or a first payslip with a court deduction on it? You can book a free initial consultation with one of our family law specialists before you decide what to do.
What is an attachment of earnings order?
It is a court order that tells the payer’s employer to make regular deductions from their earnings. The employer pays those deductions to the court (s.6(1)). The court passes the money on, and each payment counts as if the payer had made it (s.13).
The order reaches earnings only. The Act counts wages and salary, with fees, bonus, commission and overtime (s.24(1)). A works pension and statutory sick pay count too. It leaves out social security benefits, disability pensions and armed forces pay (s.24(2)). A self-employed ex has no employer to serve, so the court will need a different method.
The person owed the money can apply. Under a maintenance order the payer can apply for one too (s.3(1)).
Which family court orders can it enforce?
Any maintenance order listed in Schedule 1 to the 1971 Act. That includes periodical or other payments under Part II of the Matrimonial Causes Act 1973 (Schedule 1, para. 3). So it covers maintenance for a former spouse and lump sums ordered on divorce.
The list also takes in the civil partnership equivalents (para. 15). Periodical payments for a child under Schedule 1 to the Children Act 1989 count as well (para. 5). A maintenance order that has ended still counts if arrears under it remain recoverable (s.2(a)). The family court has the power to make the order for all of these (s.1(1A)). Our guide to spousal maintenance explains how the court decides the payments themselves.
Unpaid costs work a little differently. A costs order in family proceedings is a judgment debt in the Act’s terms (s.2(c)). The family court can make any order the county court could make (Matrimonial and Family Proceedings Act 1984, s.31E). For a judgment debt, the court must first see a missed payment (s.3(3)). The order then states the whole sum still owed (s.6(4)).
What if the arrears go back more than a year?
Arrears that fell due more than 12 months before you start need the court’s permission (Matrimonial Causes Act 1973, s.32(1)). Ask for it in the same application (rule 39.20). The court can refuse, set conditions such as instalments, or let the payer off some or all of them (s.32(2)).
How do you apply for an attachment of earnings order in the family court?
Send the family court your application with a copy of the sealed maintenance order (rule 39.5(2)). Add a statement of the amount due, verified by a statement of truth (rule 33.3(1)). HMCTS publishes Form FE15 for the request, and the fee is £39 (fee 12.5).
After that, the attachment of earnings application follows set steps under Part 39 of the Family Procedure Rules:
- The court officer fixes a hearing date once you file your papers (rule 39.5(3)).
- The court serves the payer with notice and Form FE17, a reply form due back within 8 days (rule 39.6).
- The court can ask the payer’s employer for a statement of their earnings (rule 39.7).
- The hearing is in private unless the court directs otherwise (rule 39.8).
- The order names the payer and, where known, their workplace and works number. It goes to both parties and the employer (rule 39.13).
Unsure whether pay is the right target? Form D50K asks the court to choose the method itself (rule 33.3(2)(b)). The payer then has to attend court, answer questions on oath and file a financial statement. The fee is £63 (fee 12.1). You can also ask for an order against pay at the hearing where the court makes or varies the maintenance order. That skips the separate filing and reply steps (rule 39.5(1)).
How much can attachment of earnings take?
Up to the normal deduction rate the court sets, and only from pay above the protected earnings rate (s.6(5)). There is no fixed percentage, because the court sets both figures for each case.
The protected earnings rate is the floor for the payer’s pay. The court sets it from their resources and needs. For regular maintenance (not a lump sum), the normal deduction rate has a ceiling (s.6(6)). It can cover payments as they fall due and clear the arrears within a reasonable period, but no more than that. Both rates apply to pay after income tax, Class 1 National Insurance and pension contributions (Schedule 3, para. 3).
Say the court sets a normal deduction rate of £400 a month and a protected earnings rate of £1,400. In a month when pay after those deductions is £1,900, the employer takes £400 and the payer keeps £1,500. If that pay drops to £1,650 the next month, only £250 sits above the protected line. The employer takes £250. Under a maintenance order the missing £150 carries forward to later pay days (Schedule 3, para. 6).
An order for costs uses the same two figures, but nothing carries forward. Each pay day the employer takes whichever is less: the normal deduction or the pay above the protected line (para. 5). This is also why an online attachment of earnings calculator cannot give you the figure for a family court order. Both rates are the court’s own judgement about one household’s money.
When does the employer start taking money from pay?
Once the court serves the order, with 7 days’ grace before the employer is liable for missed deductions (s.7(1)). From then on it deducts on each pay day and pays the money to the court’s collecting officer (s.6(1)(b)).
- It gives the employee a written statement of each deduction (s.7(4)(b)). It may keep £1 a time towards its costs (Attachment of Earnings (Employer’s Deduction) Order 1991, art. 2).
- It tells the court within 10 days if the person never worked there or has left (s.7(2)).
- With more than one order, it puts maintenance before debts such as costs (Schedule 3, para. 8).
An employer that fails to comply commits an offence. Taking all reasonable steps is a defence (s.23(2)(a) and (5)). Unsure whether a bonus counts as earnings? The employer, the payer or the person owed can ask the court to decide (s.16).
What happens if the paying ex changes or loses their job?
The order lapses when that job ends, but it stays in force for other purposes. The court can direct it to a new employer (s.9(4) and (5)). The payer must tell the court in writing within 7 days of leaving or starting a job (s.15). For a new job, they must give details of the pay as well.
A new employer who knows about the order has 7 days to tell the court too (s.15(c)). For a payer, failing to report a job change is an offence. It can lead to a fine or up to 14 days in prison (s.23(2)(d), (3) and (4)). If deductions stop arriving and you do not know why, ask the court office to search its records. It will check for any order in force against the payer and certify the result (rule 39.3).
Attachment of earnings order: find your next step
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Still to decide on your factsWhat this order type changes, and the judgement no checklist can make.
Can I stop an attachment of earnings order?
You cannot ask your employer to ignore it. GOV.UK warns that you can both face a fine if the employer does not follow the order. What you can do is apply to the court that made it to vary or discharge it (s.9(1)). You might do that if the deductions leave you short of what you need to live on.
The court can also act of its own accord. It must discharge the order if the person served does not employ you (rule 39.16(2)). It may discharge it once the maintenance order behind it has ended (rule 39.16(4)). The court may also discharge it when nothing more is payable or when it orders another method of enforcement (rule 39.16(5)). Before it does, it normally lets both sides have their say (rule 39.16(6)).
What should the paying person never ignore?
The reply form and any court order to give a statement of earnings. Failing to return Form FE17 within 8 days is an offence (rule 39.6(2); s.23(2)(c)). So is giving information you know is false (s.23(2)(f)).
Missing the hearing is risky too. The court can adjourn and order you to attend. If you fail again or refuse to give evidence, it can order up to 14 days in prison (s.23(1)). For the person owed, an order against pay also changes what comes next. While it is in force for maintenance, earlier enforcement proceedings cannot lead to committal (s.8(1)). If the court does make a committal order, the order against pay ends (s.8(3)). Our guide to committal proceedings in the family court explains that last resort.
We advised a woman whose former husband stopped paying her maintenance soon after he moved in with a new partner. He was on a salary with a large employer, so an order against his pay looked simple. By the time she came to us, though, some of the arrears were well over a year old. She had planned to claim the whole sum in one go. We explained that the older arrears needed the court’s permission, and that the court could reduce them. We helped her put the permission request into the same application. She backed it with a schedule of every missed payment, set against the order and her bank statements. What happens in any case turns on its own facts.
How does a court order differ from a CMS order on pay?
The Child Maintenance Service makes its own deduction from earnings order, with no court hearing (Child Support Act 1991, s.31). That order protects 60% of net earnings each pay day (Child Support (Collection and Enforcement) Regulations 1992, reg. 11(2)). A family court order enforces the court’s own financial orders. It leaves whatever protected figure the court sets for that payer. GOV.UK says a CMS order comes first in England and Wales, except over a priority attachment of earnings order. Our guide to CMS vs court order explains which route applies to child maintenance.
How do council tax and DWP deductions from pay differ?
They come from separate systems that do not involve the family court. For council tax attachment of earnings, the council makes the order itself. It needs a liability order from a magistrates’ court first (Council Tax (Administration and Enforcement) Regulations 1992, reg. 37). The DWP attachment of earnings is different again. The DWP writes to the employer directly to recover benefit overpayments, through a Direct Earnings Attachment (GOV.UK).
Both use fixed percentage tables. The council tax table is in Schedule 4 to the 1992 Regulations, and the DWP publishes its own. Questions about either go to the council or the DWP.
| Order | Who makes it | What it collects | How much it takes |
|---|---|---|---|
| Family court order against pay | The family court, on an application | Maintenance, lump sums and costs under family court orders | A normal deduction rate and a protected earnings rate fixed by the court (s.6(5)) |
| CMS deduction from earnings order | The Child Maintenance Service | Child maintenance worked out by the CMS | The amount in the order, leaving at least 60% of net earnings (reg. 11(2)) |
| Council tax attachment of earnings | The council, after a liability order | Unpaid council tax | A percentage of net earnings from a fixed table (Schedule 4) |
| Direct Earnings Attachment | The DWP, by letter to the employer | Benefit overpayments | A percentage from a table, adjusted if all deductions pass 40% of net earnings (GOV.UK) |
Expert Tip
If your ex owes you maintenance, file a dated schedule of every missed or short payment with your application. Set each one against the wording of the order. The court caps the maintenance deduction rate at what covers ongoing payments and clears the arrears in a reasonable period. So it needs to see exactly what the arrears are. If any arrears are more than a year old, ask for permission in the same application, as rule 39.20 requires.
Hannah Overton, Complex Children Specialist & Client Support
Attachment of earnings order: frequently asked questions
Do you have to wait for missed payments before applying?
Not for maintenance. The Act drops the missed-payment condition for maintenance orders (Attachment of Earnings Act 1971, s.3(3A)). Rule 39.1 also applies whether or not arrears have accrued. For a costs order, the court must see at least one missed payment (s.3(3)).
Can an order take money from self-employed income?
No. It reaches only earnings from an employer, such as wages, salary, a works pension and statutory sick pay (s.24(1)). The Act also excludes benefits and disability pensions (s.24(2)). Against a self-employed payer, the court will need another method.
Can there be two attachment of earnings orders at once?
Yes. The employer deals with orders for maintenance first and orders for debts such as costs after them. Between orders of the same kind, the employer starts with the oldest (1971 Act, Schedule 3, paragraphs 7 and 8).
How long does the order last?
Until the court varies or discharges it. The court may discharge it when nothing more is payable or the maintenance order behind it has ended (rule 39.16). It lapses if the payer leaves the job, but the court can direct it to a new employer (s.9(4)).
Can the employer charge for making the deductions?
Yes, £1 each time it makes a deduction (Attachment of Earnings (Employer’s Deduction) Order 1991, art. 2). The £1 goes towards its clerical and administrative costs. It must also give the employee a written statement of each deduction (s.7(4)(b)).
Maintenance unpaid, or deductions you cannot live on?
Two mistakes come up again and again with an attachment of earnings order. People owed money claim arrears going back years without asking the court’s permission. The court can then cut or refuse the older sums. People paying ignore the reply form, or change jobs without telling the court within 7 days. Both are offences in themselves.
A free initial consultation is a conversation with a specialist, who gives you initial advice tailored to your circumstances. It does not include drafting or reviewing documents.
Book a free initial consultation or call 0330 094 5880.
Related guides: spousal maintenance and divorce and debt. You can also return to our guide to enforcing financial court orders or our financial settlement after divorce page.
General information about the law in England and Wales, not advice on your circumstances.
