What happens when spousal maintenance stops?

Family Law|September 16th 2016

Spousal maintenance can be a tricky subject. Enquiries about it often crop up so I thought readers might be interested to know what they can do if they find themselves in a situation like this one. Again, in what looks like an innocuous question the answers are varied and technical.

“I have an English court order for spousal maintenance. My ex has decided to stop paying. I’m desperate. I need the income to live on. What can I do?”

My answer?

First, if you are the payer and think that you simply don’t want to pay up and simply stop: beware. You could be opening a hornet’s nest as we will see.

Second, if you are the recipient: don’t despair! Enforcement of the arrears should be done swiftly before it gets to 12 months, after which it becomes harder. The court has more discretion to wipe out arrears over a year old.

Enforcement of a court order, or an undertaking given in a court order, is governed by Part 33 of the Family Procedure Rules 2010 and there are lots of options to choose from.

First, payer and payee please note that if there is a court order in place, no one can simply stop paying without the court order itself being discharged. To do so puts the payer in breach of the order, rendering him or her potentially liable to pay arrears and interest on the unpaid amount and costs of collection. Worse still, the payer is liable to be committed to prison for non-payment.

But people who stop paying usually do so because they calculate the payee will do nothing about it. The payer knows that he or she really needs to have the court order properly ended and is probably also worried at the back of their mind that this just might not happen. Or thinks it is too expensive a process to set in motion. So his or her next move is to stop paying and then see what you, the payee will do.

Well, if all you want is the back payments and no increase, and talking or writing politely requesting the arrears doesn’t work, you can apply in the High Court, or County Court depending on the sum due, for what is called a “Pay Up” summons using Form D50K, although if arrears are more than 12 months old you would first need permission from the court to collect them. As you can see, if you take a look at the form, the court can make wide ranging orders for payment of the arrears by a variety of means as either you or the court wants. These can include ordering payment by standing order and obliging a person to open an account to make the payment, having first been given an opportunity to do so.

It is possible, if you prefer more certainty in the future, to apply for an attachment of earnings order against the payer’s employers or to simply request the issue of a bailiff’s warrant for the amount outstanding.

Then in more esoteric cases, it is also possible to apply for the appointment of a Receiver and a charging order against property such as land or securities or even money held in court and then apply for a sale of the charged property.

There is also a different process which is even more draconian whereby you could issue a Judgement Summons which carries with it the threat of imprisonment if there is non-compliance. There is a strict procedure for doing this under Part 33 but it is not for the faint of heart. You really do need to be sure the payer can afford to pay up before you get going. But in 99 out of 100 cases, this works and is never repeated. There are people however such as the late Scot Young who was prepared to go to prison rather than pay. In my experience this is extremely rare. Even a day in prison is enough to ensure full compliance ever afterwards.

So don’t give up hope, and be strong. However, there is another option.

If the response of the payer is to fight back, and to do what he or should have done before stopping paying and make an application to extinguish an order so as to hold up your enforcement efforts for which you may then need the court’s permission, you might want to consider applying for an increase in maintenance and/or exchanging income for a lump sum by making an application for capitalisation of your maintenance order under Section 31 Matrimonial Causes Act 1973. You might want to do this anyhow.

One of the important points to note about this type of application is that the court will assess the spousal maintenance you should be receiving at the date of the application (as opposed to the date the original order was made) and then capitalise it probably by using the Duxbury tables as a guide. So it could be win-win for the payee and lose-lose for the payer. And you would probably get your legal costs back too. But no absolute promises on that one!

But what if the payee lives abroad and the payer stops paying in England under an English court order? There are reciprocal arrangements for the collection of spousal maintenance across most countries. These do not require a lawyer but do mean quite a bit of form filling and supply of the relevant documents (plus, I warn you now, an endless supply of patience!) via what is known as Reciprocal Enforcment of Maintenance Orders (REMO) in this country. Further information on this process is available here.

Whatever you decide to do, by far the best way is to discuss and resolve the issue out of court. You might tell the payer what you intend to do and then, and only then if still unsuccessful, just take a deep breath and get on with it.

 

Author: Stowe Family Law

Comments(34)

  1. Andy says:

    Yet again the bias court rules in favour of the gold digger mother if at all a mother.

    So your worried client cannot live on the spousal maintenance she has been awarded..is this on top of the benefits she will receive,Child maintenance payments if with children and of course a salary that is under a full time job to allocate benefits of increased earnings..and by the way awarded the former matrimonial home…
    Here is my example.
    Mother.
    Salary.£22500 pa.
    CMS payments,£6200pa.
    Benefits, £3635pa.
    Child benefit £1138pa.
    Not bad.plus the four bedroom house.value £250.000.
    Father.
    £28500 pa.
    Nothing else.
    Mortgage payments at present..£2570pa.still paying half.
    Spousal maintenance not applied for but is in the process…and for life….
    So your hard up, can’t cope, bread line scrounging idiot…got to feel sorry for he don’t you…
    Might need more cash for the 65″ plasma…and new car…court order and detached earnings order for those items.
    I would rather go to jail….than watch the bias court award such living standards…even perhaps get a full time job..

  2. stitchedup says:

    “What happens when spousal maintenance stops?” ……You get a job.

  3. Luke says:

    Andy, this can’t be a real example can it ? Is the man’s salary gross or net ? Can you be more specific about the house if it really is ?

    • Andy says:

      Luke.
      I’m afraid yes it is..this is my case…
      My ex earns as a part time teacher so getting all benefits..Two children by the way one 13 one 8.
      At present. She earns at last solicitor request vie E Forms.
      £22.500pa. She claimed CMS from me they calculated it at. £6200.pa.based on my Gross salary with pension contributions.
      She then claims benefits of £331.00 per month..child care..Best thing is tho she is a nursery teacher who claims after school care for one child and additional after school care whilst going to her job school and nursery are on one big school site so easy,morning and afternoon..I know this is a fiddle as she drops of one child on route but still claims morning and afternoon care.
      Then she gets Child allowance £138.00per month.
      Because it isn’t finished I pay half of the mortgage as variable as recent interest rate change but £255.00 per month..

      At present she lives in the house I have not been able to enter as prior events have made it difficult because as we all know the type of twat she is would either bang her head on the wall and say I’ve hit her..Violence kicks in and what a field day she would have on that one..
      Having left all my belongings that I could not take at the time she disposed of them..I purchased a BMW MINI not new but still the family car..she gave it to her fuck wit father via v5 he then sold it..she claims sold if for £100.00 pounds…you get the story now…

      In my case.
      My earnings were £37000pa now reduced to £28500 this is because that to avoid spousal maintenance she can get it if you earn more..even if she was awarded 00.50p per year this leaves the door open to apply for more in future SO Clean Break!!!!
      Because she is in the FMH her next tactic is a mesher order until the youngest is either 16 or 20 court agreement then sale of property…via court application.

      So £28500 less £6200 that don’t work out as 16% deduction but the idiots at CMS say either 25% more or less to make a rieview on salary change…but wait don’t forget the £800.00 per week rule as well if you earn more than that you pay additional 9% so what is or which is preference. I asked the CMS she could not tell me…typical….

      So in Luke I live at parents home.solicitor fees increasing so far £15000. And nothing to show..
      So I Would love to go to jail as you get 4 meals a day and can play on x box…
      And I’m 48…
      So who is the winner…
      Regards.
      Andy

      • Luke says:

        Yes, it’s not great is it ?
        To be honest at 48 if you couldn’t live at your parents I don’t see a way to recover – if you were paying rent at the going rate you would be stuffed and like all those ex-husbands staring at 4 walls in bedsit-land.
        .
        It just shows AGAIN how important it is for men to not get married. Without marriage your options would be so much better now and the anchor to your ex-partner would be removed.

    • Andy says:

      Luke.
      Spousal maintenance can be paid for life or until one of you dies…

  4. Reddit Seenit Dunit says:

    What happens when the award was made to an out-and-out scammer-CROOK, who by rights (and common sense) shouldn’t get ANYTHING?

    Where the law _aids and abets_ these (almost entirely female) crooks to plan a sham marriage, and then, once married, set about methodically “stripping assets” from their spouses?

    In this case, by first asking for a large amount of money to pay off a “loan” never mentioned before marriage, then expecting her spouse to buy a HOUSE for her two under-11 year old kids (how could they live alone?) in her country of origin. And when that was not forthcoming, to soon start obviously disrespecting the “marriage” — before launching the divorce SHE OBVIOUSLY ALWAYS PLANNED — even BEFORE the wedding? What then?

    Does the law ever recognise these SCAMS, and allow for at least some relief?? No, of course not! Because it would upset “the system” too much to even countenance that such a thing actually HAPPENS — when they are INCREASINGLY occurring, and the very institution of “marriage”, and it’s whole value system, are being steadily undermined, and eroded.

    What chance do honest blokes, who were unfortunately mug enough to be taken in by a scheming woman with only one thing in her mind — FREE MONEY FOR LIFE — have against THEM in the family courts around the world??

    There is no purer example of feminine BIAS in the so-called “justice” system.

    Angry? You bet. Though not just for myself — but for the fact that NOTHING IS BEING DONE to address these concerns for all the other unfortunates out there — so that such gross miscarriages of justice just continue, every day, every week, every year.

    Baroness Deech makes an interesting speech in the House of Lords, mentioning women who want to marry “footballers” to set themselves up for life, SHOULD the marriage go wrong. But sadly it goes no further than this, and anyway, bless her, it simply does nothing to address the issue of out-and-out SCAMMERS — who marry JUST so they can then divorce, for a nice FAT sum…..

    What does it take for the legislature to wake up to the increasing number of these CROOKS preying on even sophisticated and worldly-wise men, who still “never saw it coming”??

  5. spinner says:

    You make this sound like a slam dunk easy exercise, if the payer of spousal maintenance feels strongly enough there are many many things they can do to frustrate the process. I’m not going to list out the cases that prove this or the methods on here but if you do a little research you will find them. As for going to prison, you really have to try hard to get put in prison for not paying spousal maintenance as in you have to provably have the money requested and then be shoving it in peoples faces and still not paying to be sent to prison. I looked into all this a few years ago and it was only a handful of people who actually go sent to prison, one of the main reasons being that if you get sent to prison then your earning capacity is reduced or eliminated and spousal maintenance is a component of income and if you are also paying child maintenance it just doesn’t make sense to do this.

  6. Andrew says:

    One of the these days the Strasbourg court will say that imprisonment for civil debt, any civil debt including child or spousal maintenance, is incompatible with ECHR. I don’t think any other country in the Council of Europe, except Ireland who inherited it from us, practices it. It is an abomination.

    • Cameron Paterson says:

      A Victorian inheritance no doubt – didn’t Charles Dickens’ father end up in a debtors’ prison at one point?

      • JamesB says:

        Charles Dickens. One of the biggest complainers against lawyers there has been. If you google Dickens criticises lawyers you will see what I mean and how many quotes.

        Apparently he had lots of children and the one who made biggest name for him or herself was a lawyer.

        England and Wales should have the Scottish system for spousal maintenance, as fault is no longer and issue, and pre nups should be legal and affordable and perhaps mandatory as the marriage vows and contact orders are not enforceable then people should be able to write their own agreements that they will stick to as they see them as fair on financials and family contact and other family law type matters. Speaking as someone who also fought and got massively penalised on this and on the balance of need and ability to pay against QC in court privately funded by her Dad representing someone claiming not to have money and me LIP as money ran out bad system needs changing I agree please.

        • Andrew says:

          “The grass is always greener”, JamesB, and Scottish litigants no doubt have their own gripes. But yes, prenups should be cast-iron enforceable with a postponement, if necessary to protect the interests of children of both (not step-children or children “treated as” their own by one party) during minority. That might mean postponing the same of the house if (and only if) the PWC can keep up the mortgage.
          .
          You cannot have binding agreements about contact; that concerns the rights of the child which the adults cannot bargain away.

          • JamesB says:

            Well, Michael Jackson, Elton John, et al, seem to have successfully done so, taking parents out of the equation etc. Thank you for your reply.

          • JamesB says:

            Also, women getting anonymous sperm from sperm bank is contracting out Dad and in Mum for 100%. Also, same with all these dodgy ‘viking babies’ , I mean, what’s that all about? Ffs.

          • Andtew says:

            I have no problem with men being anonymous donors if that’s what they sign up to. Whether I trust HM Treasury not to change the rules after the event to make them financially liable is another issue. If I were the sort they want (young, tall, and 20/20 eyesight) I would not risk it.

      • Thomas Doubting says:

        As I understand it, the “debtors prison” was abolished years ago. But — in theory at least — you can still be thrown in jail for non-payment of a court-awarded “settlement”, however unfair that may seem to be.

        Personally, I feel so angered by being duped (along with the court) by one of these army of “scammers” mentioned above, I am encouraging other victims to take a stand too — and simply refuse to pay up.

        Were all those who were similarly cheated to do so, the prisons would either soon be full to over-capacity — or the lawmakers would be forced to DO something about this issue. Finally.

        • spinner says:

          A campaign of civil disobedience is what it will take to change this system, I’ve tried speaking to MP’s and asking them to speak to the correct person and so on and all you get back is well it’s beyond a joke what they come back with but basically the message is that it’s fine, nothing to worry about. There are men who have taken a stand, check out Constantinides v Constantinides [2013]. The last paragraph of the site is the key point, as in the award was based on his potential earning capacity, if they could prove he had the money then he would have been committed to prison but based on there lack of evidence relating to how much money he had and the fact that an earning capacity in itself is not a asset. I hope you can see that from this there are many many ways around this system.

          174law.co.uk/news/spousal-maintenance-remedies-for-non-payment-means-to-pay/

          Taking a stand and just not paying works if you are self employed or own a business but if you are salaried they will just take it from your employer.

        • JamesB says:

          Yes, I came out of it (my divorce) thinking I’d been conned and ripped off with the marriage and divorce and whole thing also. I understand some girls are upset about men not wanting to marry a second time for similar reasons as feeling upset with how they were dealt with the first time.

        • Luke says:

          There is truth to this, unlike women men don’t generally operate collectively very well and for the most part society doesn’t care about the plight of individual men.
          I doubt it will happen but if men started refusing to pay en masse then yes, that would change very quickly because suddenly the money supply would be cut off. It’s always about the money…

    • Alan Finlayson says:

      Andrew

      In Scotland such debts are enforceable with civil imprisonment, as an ultimate sanction for wilful failure to pay aliment, under the Civil Imprisonment (Scotland) Act 1882. It is usually triggered when the payer has run up a sizeable debt.

      Where the person owing that duty wilfully fails to pay the sum due in aliment, the person to whom aliment is owed may apply, by minute, for a warrant to imprison. The Sheriff may order the warrant for imprisonment at his discretion and there is no appeal against his decision. Failure to pay is deemed to be wilful unless the debtor can satisfy the court that he has no means to pay. The maximum period is six weeks. Imprisonment does not extinguish the debt and the creditor can re-apply for a further warrant for civil imprisonment six months after any prior warrant. It is nothing to do with ‘human rights’. It is really only a ‘last resort’ option if all other methods of recovery have failed.

      • Andrew says:

        Thanks, Alan, that is interesting. Even worse than here if there is no right of appeal.
        .
        I remain of the view that when a case reaches Strasbourg it will be held that imprisonment without crime is unacceptable. Scotland like England will have to manage without, like most of the rest of the world.

  7. JamesB says:

    Rushing, but some of details, Scottish system limit max maintenance to 1/3 income for 3 years (cm and sm combined). I had to pay 4 years for a 4 year marriage. Know someone said to me E and W courts like the SM to last the same as the length of the marriage, if not longer, and I have seen that.

    Also, another rule of thumb, please forgive the pun, takes half the length of the relationship duration after a relationship ends to get over it.

  8. Andy says:

    Spinner,Luke,JamesB.
    Great comments and as an old git you wouldn’t find this sort of information available via any legal advisor as they drain you of money in the first instance..

    You are all right in all comments..if and when fathers stand up to the courts and as now seen feminists groups demand increase in money due to violence and other issues…I see the two groups Ginger bread and Mums net are demanding that the 4% rule be withdrawn but the 20% rule stands for the father in CMS payments if direct pay through CMS,and who is fighting for us then!!!.Then proposed special training for the incompetent CMS staff in recognising Domestic Violence…well what would be the trigger to support this..would it be a special word that if said would qualify..I bet the word would be He “Shouted” at me.. Bingo you qualify for the extra cash….

    As the French do, and they have guts to do such things, if the price of fuel goes up £1euro.
    Look what happens they stand up…if this was our case we just find the extra cash and moan about it…

    The system cannot put us all in the nick…as Spinner says, things can be avoided such as earning less as PAYE. And self employment….but clean break is a must….be warned…

    • Spinner says:

      Agreed this is what I found confusing at first as I had assumed that my lawyers would work in my personal best interests, in reality “your” lawyer is primarily an officer of the court and then after that they will bring their own opinions of what should happen and then some way after that they will represent you. The only family lawyer that ever gave me actual advice that was in my personal best interest was after I started representing myself I used to speak with a family lawyer who was a colleague of a lawyer who a family member was using for something completely different but knew well who off the record told me exactly what I needed to do.

      • JamesB says:

        Lawyers are primarily in it to get paid, then agents of the court as you say.

        • Spinner says:

          I was recently working with a barrister on an unrelated non legal project and was chatting with him about some of my experiences and he told me that if you are ever arrested for anything the best thing is to say nothing. Often lawyers and I assume he meant legal aid on call lawyers will get their clients to say just enough to ensure there is something for the police to go on and then they have a case to work on.

          • JamesB says:

            Yes, had a dodgy charge once for saying I through a punch that did not connect where someone was pushing me about. Wish I had said nothing, cost a lot of time and effort before it went NFA. If I had said nothing then would have gone NFA (no further action) sooner.

            Mistake I made was to go with the on site duty solicitor in the police station for the legal aid rather than look one up in the Yellow pages. Ended up with a black girl who seemed to hate white men or wanted to sleep and didn’t care or offer much advice or wanted to even up white people convictions or had no interest in such a low level crime. Intention of battery or whatever it was. She said offer your defence early. Bad advice. They kept me up then pushed for that then said you admitted throwing a punch we are charging you. Nonsense some of this legal stuff. The person on the receiving end was an idiot for starting something he couldn’t finish and then calling the police. The cps are also bad for wasting quite a lot of money on that. Was all game playing in the divorce which did nothing but ramp up costs and animosity. Father in law had too much anger and bitterness on his hands at the time to settle properly. If it had of got to court would have been, no witnesses to who started it (wasn’t me) and no conviction, as it was cost me time and a phone which they ‘borrow’ without compensation. Over it? Yes I am. Fan of the police? Not really, I suppose they didn’t see what happened and finding the truth is a difficult job if you aren’t aware of all the facts, which is why they pay lawyers and Judges. The legal process can be a real pain in the backside though and could and should be improved in many areas.

  9. JamesB says:

    Other ‘rule’ sm and cm combined not to equal over 50 % of net income.

  10. JamesB says:

    I think him being a retired senior policeman alcoholic was the main cause of the cost overrun and the incidents with my case, add to that his daughter delegating it all to him and his lawyer being short of money at the time and dodgy legal systems of divorce (civil) and (criminal) positive intervention and it is a bad cocktail. That the Judges whenever the accusation of violence came up giggled and dismissed it (which I found slightly humiliating) didn’t stop the lawyers spending money and time and emotion on it and getting the whole thing go bad and bad tempered which is not the best way. Better to do in a friendly or professional, not this crazy way. Anyway, slightly side tracking the issue sorry about that.

  11. Ann Winslett says:

    Hi, my ex is in Canada and on the divorce will have to pay me spousal maintenance. I am 64 have had a stroke and am disabled. He has lost his job in Canada and refuses to come back and get one here. We won’t be able to meet the mortgage or other bills. I am going to start the divorce which I should have done before but listened to him AGAIN. My fear is when he gets a job I won’t know and won’t be able to claim my maintenance. I gave up a qualified job with local authority to go to Canada in 2008 for 18 months. I couldn’t replicate it or the pension on my return. I brought his children up from 12,10,7 and 3. How can I find out where he’s working and how much he’s earning. His last job paid £100k plus. I have basic state pension and £3600 a year occupational pension.

    • Cameron Paterson says:

      Hello: we may be able to get you some advice. If you could let us know roughly what part of the country you live in, we’ll ask a solicitor from the nearest office to drop you a line with some thoughts

  12. Andrew says:

    Ann, don’t think I am without sympathy but if as is usual he is older or not much younger than you the point will come, or may have come, when he hangs up his working gloves and retires. You may or may not be able to claim part of his pension but nobody- not you or the court – can make him come back and get another job!

    There is a point here which won’t go away. Ex husbands and estranged husbands are not insurers and are not chained to the hamster wheel until they drop – whatever the state of the other party’s health or finances.

    • Ann Winslett says:

      I actually think you are unsympathetic- he is a lot younger than me and it will be years before he finished work. In actual fact he has got a very good job over here within a week. I definitely think I need a female solicitor as you sound quite bitter. Where do you work so I can avoid it.

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