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?”
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.