Enforcing a maintenance clause

We all know the old adage about death and taxes being the only certainties in life.  Following a hearing in the High Court in November*, we are unable to add “receipt of your spousal maintenance” to that list.

In 2004, a wife was awarded £750 per month in spousal maintenance on a joint lives basis. So she was due to receive this sum every month for the rest of the joint lives of the couple, or until remarriage, or until the court made another order.   Lawyers often refer to maintenance being “a moveable feast” because a joint lives maintenance order may change in both duration and amount if one of you asks the court to reconsider it at a later date.

Unfortunately Mrs Constantinides, the wife in the case, did not receive any of the money due to her under the order.  The arrears due by the time the court hearing I am referring to here came about were £78,000. The wife endeavoured to enforce the maintenance clause, but eight years passed without any success.  However, in 2012, the District Judge had had enough and imprisoned the husband for 6 weeks.  She held that “Whilst I am highly suspicious about the husband’s current income and assets, I cannot be sure that he has an income or capital or assets.  However, I am sure that there is both wilful refusal and culpable neglect. He has both an earning potential and could apply for benefits but he chooses not to. I find that this is an ongoing and deliberate attempt to frustrate the maintenance order.”

The case then went to an appeal.  The judgment does not make light reading – and indeed the judge who wrote it referred to the complexity of this area of law, anticipating that the lay person, and maybe even lawyers, would perceive it as “gobbledegook”.  The essence of it though is contained in this phrase: “a magistrates’ court cannot lawfully commit a person to prison for default in paying a maintenance order, or a maintenance order which has been registered in that court, unless it is satisfied that the payer has, or has had, the means to pay.”

So in summary, the judge was not willing to imprison a man who had an earning capacity, but refused to exploit it to enable him to pay the maintenance clause, on the basis that “those sorts of considerations are far too speculative a foundation for the ultimate and grave sanction of imprisonment.”

*Constantinides v Constantinides [2013] EWHC 3688 (Fam)

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