Imprisonment for a debt

Family Law|October 23rd 2014

Anyone with any knowledge of history will tell you that debtor’s prisons are, thankfully, a thing of the past, something you will only come across in a historical novel. You can no longer be sent to prison for debt.

Well, that’s not quite true. Whilst the Debtors Act 1869 did abolish imprisonment for failure to pay a debt, it did leave the court with the power to ‘commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any other competent court.’ The procedure whereby a party to the proceedings may apply for such committal is known as a judgment summons.

Judgment summonses are quite a rare bird, so it was with interest that I came across the report of a case involving one this week. In Prest v Prest the wife sought the husband’s committal to prison for failure to pay to her sums totalling £428,200 due under a maintenance order for herself and the children.

As I have said, under the judgment summons procedure the court can commit a person to prison for up to six weeks for failure to pay a debt due from him under a court order. A maintenance order, requiring one party to pay maintenance to the other, is covered by the procedure.

Apart from there being an order and a sum of money outstanding under it, there are two provisos that must be met before the court can make a committal order. Firstly, the court must be satisfied that the payer has, since the date of the order, had the means to pay the debt and secondly it must be satisfied that he has refused or neglected, or refuses or neglects, to pay the sum due.

The facts of the Prest case are somewhat complicated (regular readers of this blog may have come across other posts referring to the case), but for the purposes of this post I don’t need to go into too much detail.

The judgment summons was heard by Mr Justice Moylan. He found that the husband had made some payments in respect of the maintenance order, but that he still owed the sum of £360,200.

The next question was whether the husband had the ability to pay the sums due under the order. After considering the evidence, including the wife’s evidence that the husband had spent at least £270,000 on holidays, he was satisfied that the husband did have the means to pay the sum of £360,200.

The last question was whether the husband had refused or neglected to pay the sum due. Mr Justice Moylan was satisfied that the husband had refused or neglected to pay the sum due – he had had the resources to enable him to do so and had wilfully failed to do so. The husband had “proffered no explanation or excuse which bear any weight.”

In the circumstances Mr Justice Moylan imposed upon the husband a term of imprisonment of four weeks, suspended for three months, to give the husband an opportunity within that time to pay the sum due.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

Comments(2)

  1. Keith Grimes says:

    Interesting that imprisonment for debt was abolished in 1869. In researching my family I discover that my gt gt grandfather was imprisoned 9 times between 1893 and 1913, usually for 21 days, in HMP Wakefield. He was a pottery labourer with 10 children and spent Christams in jail in 1901 and 1992. The offence on his prison record each time was debt.

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