Can’t pay, won’t pay?

Divorce|August 24th 2012

‘Money makes the world go round’, according to the musical Cabaret, and this is an observation most of us would ruefully agree with. Family law is no different to the rest of society in this respect: proceedings are frequently focused on financial matters – the disposal of property, child maintenance, alimony, the division of assets…the list goes on.

Few of us enjoy receiving bills, and the temptation to procrastinate when it comes to settlement is always there.

But when demands for payment come backed by a court order, most people are sensible enough to settle promptly.

But what happens when they don’t? What can you do if one party in a case repeatedly fails to pay what they owe? If you are confident they have the ability to pay, you issue a judgement summons.

This special order is issued on behalf of creditors when they have previously obtained legal judgements concerning sums due, but the debtor has failed to comply with these.

Anyone receiving a judgment summons must appear in court and face examination under oath about their ability to pay the money owed. If it is clear that they have had the means to pay the debt since the original order or judgement was made, then they must do so immediately. They will also have to show the court why they should not be sent to prison for their previous failure.

One recently published case – Winter v Winter [2010] EWHC 3825 – illustrates the issues. The case centred around a dispute over child maintenance payments between a divorced couple.

During their marriage, Mr and Mrs Winter, both originally from Sweden, lived in the UK. They had three children and lived a financially comfortable life thanks to Mr Winter’s success as a banker. But then the marriage came to an end and Mrs Winter decided to return to Sweden, taking the children with her. Her husband was unhappy with this decision and disputed her right to take the children abroad in court. He lost on appeal, and Mrs Winter returned to Scandinavia.

Mr Winter then failed to make any child maintenance payments, despite having been successful in an earlier application to have the agreed amount reduced.

His former wife returned to the UK courts seeking payment and further proceedings followed. Mr Winter agreed to an order to bring £32,000 from the sale of a flat in Sweden into the UK to settle the arrears.

He did not do so, however, spending the money for other purposes. Mrs Winter then took further legal action against her former husband for breaching the order to bring the £32,000 into the UK. She also issued a judgement summons against the earlier order for child maintenance.

The case was heard before Mrs Justice Baron in the Family Division of the High Court. She found Mr Winter in contempt of court for his failure to pay the £32,000 agreed in December 2009, commenting:
“I am clear from the evidence which I have heard today that Mr Winter is a man who is inclined to say anything that he thinks will get him out of a difficult situation at any particular time.”

Mr Winter had a “disrespectful approach to a court of law”, she said, adding: “Courts are not toothless bodies. They make orders in order to regulate positions between human beings so that society may work in a proper fashion.”

She sentenced him to one year’s imprisonment, suspended on condition he pay the £32,000 owing in various instalments. Any failure to do so would make the full sum payable, and failure to pay that would lead to his immediate imprisonment. The judgement summons was suspended following an appeal.

One crucial factor in determining whether to issue a judgement summons is the ability to pay. If there are any doubts surrounding the defendant’s ability to do so, the order will not be made. In addition, with imprisonment as a possible penalty, judgment summonses effectively tiptoe across the floor from civil into criminal law. A criminal standard of proof is required – ie ‘beyond reasonable doubt’ – rather than the civil standard, ‘on the balance of probabilities’.

This was established in the case Aaliya Murbarak v (1) Iqubal Murbarak (2) Mohammed Hussain Wani (3) Dianoor International Ltd (4) Dianoor Jewels Ltd (December 14 2000) (2001) 1 FLR 698. In this case, the husband successfully appealed against a sentence of six weeks in prison resulting from a judgement summons issued by his wife. Although he had not paid her an agreed – and substantial – sum, he was able to demonstrate that she had not fully clarified the case against him. The previous summons had not recognized, agreed the appeals judge, that that the burden of proof lie on the wife to prove he could pay, not on the husband to prove that he could not. He had the right to a presumption of innocence, just as in a full criminal case.

Have I ever used a judgement summons in my professional career? I’m sure you won’t be surprised to hear that the answer is yes. Some people respond to the emotional stresses and strains of family law proceedings by becoming extremely stubborn. But a trip to prison is, in most cases, a severe wake-up call!

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  1. JamesB says:

    Without geting into the whole emotionally charged reasoning of child maintenance and paying for the dubious honour of having a child stolen from you and brought up by another man in another country, well, disregarding them points … (strewth) !.

  2. JamesB says:

    France doesn’t do that.

  3. JamesB says:

    If you don’t cant or wont (live in France that is), then best avoid being stitched-up by these places (Family Law Courts) by not getting married in the first place.
    No, money doesn’t make the world go round, love does. But being a lawyer I can see why you may think the way that you do, like the police, in black and white and what is lawful and what is not. Natural law is different. If law departs from it too much (as I think it has by making divorce amoral process), then people will vote with their feet and not get married in the first place. Without government and rule by consent, the laws you hold so highly mean nothing. Enforing bad law is the road to hell.

  4. john says:

    it appears that the welfare of the children in maintaining contact with both parents is a secondary issue, and the main priority is to criminalise their father with regard to their financial upkeep!
    is it any wonder that we are living in a broken society.
    The emphasis should be on an all round approach of contact and finance, using mediation!
    Abiding by the law is one matter, be hauled into a court and not be tried by a jury of your peers is another matter. Common law should supercede Statute law!

  5. JamesB says:

    John, yes your fears are right. In law, contact and maintenance are not linked. Courts only care about children and not the parents, thus ruining the children’s lives in the process. I could go into the detail, but the imposition of high maintenance is not condusive to good relations. Neither is not seeing the children or another man rich man living with the child and being married to the mother and not paying anything. I could go on and on, but I won’t as I am trying to survive being on the end of this law without going under. Agree on the common law point also. Regards, James.

  6. David says:

    I would agree with Mrs Stowe’s article factually, but there is another side to the story; it just depends on how far you are prepared to push matters.
    A few years ago, I was served with a Judgment Summons, and know a reasonable amount about them. I defended myself, and found that judges often let themselves down by their lack of understanding of the law. In the above case, Winter, a 1 year suspended prison sentence was simply not lawful; 6 weeks is the maximum allowed by the Debtors Act (a nineteenth century piece of legislation).
    Another aspect is that judges will easily hand out a suspended sentence, but if you stand your ground, refuse to comply (with reasons), assert unlawfulness, and apply to set aside the order (as I did), then you will discover that judges baulk at the prospect of sending an unrepresented person to prison, when they are presented with a ‘way out’ which allows them to avoids that.
    This law is basically pretty outdated, and has been somewhat emasculated by the Human Rights Act Section 6.

  7. Observer says:

    What I find so hypocritical is that any transgression to do with money is seen and punished as a crime, but crimes like false allegations, denial of contact, child abuse, protracted litigation, exploitation of legal aid, contempt of court are all encouraged.
    And yet there are some who still want to speak of this thing called the principle of the paramountcy of child welfare.
    And there are still some who have any confidence left over in the British family justice system. Wow indeed!

  8. Lukey says:

    “But then the marriage came to an end and Mrs Winter decided to return to Sweden, taking the children with her. Her husband was unhappy with this decision and disputed her right to take the children abroad in court. He lost on appeal, and Mrs Winter returned to Scandinavia.”
    Mr Winter had a high paying job in Banking – it is highly likely that in order to keep this high paying job he had to continue to stay in the country.
    The wife unilaterally decides to take the children abroad so that he cannot see them (which the courts allow) – whilst he continues to fork out large sums of money in the certain knowledge that his relationship with those children is going to be destroyed.
    Family Court in this country is not only cruel and biased – it’s INSANE.

  9. Keith Gaunt says:

    My daughter’s husband was granted a reduction in Global Spousal maintenance the arrears of the original order were not mentioned in the recent variation order, can my daughter obtain a court order to obtain the arrears still owed to her.
    Kind Regards K.Gaunt

    • Marilyn Stowe says:

      Dear Keith
      The order varying the original might also state whether the arrears were remitted or not. Generally arrears outstanding over 12months old are not enforceable.
      She needs to take specific advise on the terms of the order.

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