Enforcing Maintenance Orders

Scott Young, an allegedly bankrupt businessman, was last week sentenced by the Court to 6 months imprisonment for failing to comply with a Court Order made in divorce proceedings requiring him to disclose his true wealth.

Said to be worth £400m, Scott Young was ordered by Mrs Justice Black in 2009 to pay to his wife rent, school fees for the children and maintenance at £27,500.00 per month.  The Order was never appealed but nor has Mr Young ever paid any of the monies due.  Maintenance arrears now amount to almost £1 million.

With the Courts imminently facing a huge increase in the numbers of people who represent themselves in Court as legal aid ceases to be available for most divorce cases as from April 2013, the ruling perhaps indicates that the Court is sending a message to those who fail to comply with its orders that the Court is prepared to take a far tougher stance than it may have done before.

Prison sentences are very rare for failing to comply with financial orders made in a divorce. In fact, Mr Young had been given a number of chances to comply before the prison sentence was imposed upon him and the outcome, although being described by his girlfriend also in Court as “not a great day”, still meant he had no doubt in his ex-wife’s eyes been given plenty of opportunity to do the right thing by the Court.

Recovering arrears of maintenance, or changing payments of maintenance have proved fairly commonplace during the recession as jobs have been lost and households have had less disposable income.  Changing payments or recovering arrears sounds straightforward enough, but is in fact not.

If you decide to stop paying maintenance or pay a different amount, and have a Court Order, you are in contempt of Court and liable to a fine or a term of imprisonment, as well as potentially facing the prospect of paying the receiving party’s legal fees if the Court says you were wrong to stop paying or to pay a lower amount.

You can of course reach agreements about changing the amount of maintenance, or stopping it altogether, but to prevent the person receiving maintenance denying any agreement was ever reached, an application to the Court should be submitted by way of Consent confirming the change in the level of payments agreed.

There are different Courts that can make different types of maintenance Orders and so they also have different ways of helping you recover monies due and helping you change the level of payments and the CMEC (was the CSA) add a further complication.  The most common situations relating to maintenance are:

  1.  If you have an Order made in divorce proceedings and the other person stops paying, or pays you a lower amount, and you don’t agree with this. Your cheapest and swiftest course of action is usually to register the Order with the Magistrates Court, but you need legal advice to make sure that this is the best course of action. If you register in the Magistrates Court this then often means though that all future hearings will be in the Magistrates Court which has more limited powers than the County Court.There are lots of other ways of enforcing maintenance orders in the County Court or High Court, but it is sensible to obtain legal advice to make sure that the type of order you apply for is the most likely to result in recovery of monies, and that you are using the right forms and paying the right fees and applying to the right Court
  2. If you have an Order and you need more money because of a change in circumstances then you can make an application to the Court for the Court to decide if this is fair, if you cannot reach an agreement. This procedure starts off with an application to the Court, payment of a Court fee and forms being filled in setting out your financial position and the reasons why you want more money, and often between one and three hearings.
  3. If you have an Order and the payer moves abroad.  This can also apply if you have a CSA or CMEC assessment and the payer moves abroad and is no longer employed by an English company.

The recovery of maintenance is one of the few types of legal proceedings arising from a divorce and separation where a Judge may be inclined to order payment of legal fees by the person in default, but this is discretionary and depends upon the conduct of the payer.

Emsleys has a team of expert family law solicitors based around the Leeds area able to advise you, and represent you, in relation to the payment and recovery of spousal and child maintenance.  We recognise that often those trying to change payments or recover them find it difficult to meet payments of legal fees.  Emsleys family law department helps such clients by way of offering fixed fees, payments by instalments and pay as you go representation and, in some circumstances, can discuss with you deferring payment until the conclusion of your case if third party funding is obtained.

Gabbie  Clasper

Written by

Gabbie Clasper

Head of Family Law

Gabbie has over 20 years’ experience in family law. She has expert knowledge in complex issues including financial aspects following divorce; pre and post-nuptial agreements; cases with an international element; and civil partnerships. Gabbie is regularly instructed by clients based across the country and abroad. She...

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