Pay the maintenance… or go to jail?

It has to be the most draconian method of enforcing a court order. Under the judgment summons procedure, a person who is owed money under a court judgment may apply to the court for the debtor to be committed to prison for their default.

For obvious reasons (some of which we will come to in a moment), the judgment summons procedure is quite rarely used, in comparison to other methods of enforcing payment of a debt. The latest example of its use in a family law context is the High Court case Rogan v Rogan.

In the case, the parties were divorced in 2014 and the wife had obtained a financial order requiring the husband to pay her a lump sum of £5 million. The lump sum was to be payable in two instalments. The first instalment was paid, and the second was due on the 31st December last. It was not paid. Meanwhile, the order provided that the husband should pay maintenance to the wife at the rate of £8,000 a month until the second instalment of the lump sum was paid, whereupon the wife’s maintenance would be automatically dismissed.

The husband failed to pay the maintenance after November last year, and the wife issued a judgment summons in relation to the non-payment of the maintenance (but not in relation to the non-payment of the second instalment of the lump sum). At the time of her application the maintenance arrears stood at some £55,000, and when the application went before Mr Justice Holman last month they stood at some £88,000.

Mr Justice Holman began his judgment by pointing out the seriousness of the application. He said:

“If the husband is committed to prison, that is likely to be very damaging to relationships between the parties and their two children, now aged 14 and 11, and seems likely to have a damaging effect on the husband’s business.”

He went on:

“During the hearing, I have questioned whether the wife really wished to take this summons to the wire, but she said that she does. It is her belief that if a suspended order for imprisonment is made, the husband will, in the end, produce the money. That being so, it is my duty to hear and determine the judgment summons.”

OK, so on to his findings.

The question, of course, was: did the husband have the means to pay the maintenance when it was due?

It was accepted that the husband’s business was complex and that he could at times enter into deals that generated considerable wealth, and at other times have no income at all. During those ‘leaner periods’ he would be reliant upon borrowing, which he would then pay off when he concluded a deal.

However, Mr Justice Holman was quite certain that the husband had the means to pay. It did not help the husband’s case that as recently as 2015 he was able to purchase a large country house near Wallingford in Oxfordshire, with five reception rooms, six bedrooms, tennis court, swimming pool, garages and 24 acres of land for £4.3 million, or that in a period between January 2018 and mid-May 2018, the very period when he was getting into increasing debt and arrears to his former wife, the husband spent about £24,775 on a wedding to his present wife in England, plus about £48,000 upon a wedding to the same wife in Morocco.

Mr Justice Holman concluded:

“This evidence as a whole leaves me quite sure that in the period since the maintenance arrears began to arise and today, the husband has had the means to pay all of the arrears, the subject of the present judgment summons, namely now £55,000. The wife has proved to the satisfaction of the court, to the required criminal standard, that [the husband] has failed to pay the sum of £55,000, being the debt due from him to her in pursuance of an order of this court, and that he has had, since the dates when the debts arose, the means to pay that sum. He has refused or neglected to pay it, and that refusal or neglect has been deliberate and willful and is culpable, being in contempt of court.”

So, was the husband committed to prison? Well, no. We are told after the end of the judgment that:

“After a period of adjournment both parties agreed that the question of sanction would be adjourned until 18 March 2019 on terms agreed by the husband that he would, by agreed dates, pay all the arrears, and current instalments as they fall due, and an agreed figure for the wife’s costs of the judgment summons.”

So it seems that the wife was right: the judgment summons would, in the end, produce the money.

You can read the full judgment here.


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