On my divorce, I came to a financial settlement with my former spouse and an order was made by the Court. I should receive maintenance payments every month. Payments have stopped and there are now significant arrears. What can I do?
Firstly, you need to consider why your former spouse is not paying the maintenance and maintenance arrears.
As simple as it sounds, you need to consider when and whether the payments are due to end. Are there any terminating events that have taken place, ending your former spouse’s obligation to make maintenance payments?
If the maintenance is payable, the next step is to consider why your former spouse has stopped paying maintenance. Have they misunderstood the terms of the order?
An order whether made by consent or not that requires maintenance to be paid is a judgement by the Court; the terms of which must be complied with.
If your former spouse argues that his personal circumstances changed, it does not change his obligations under an order.
If your former spouse lacks the means to pay the maintenance, they should contact you setting this out and try to agree a way forward. If it cannot be agreed, it is for your former spouse to ask the Court to change the order.
However, if your former spouse is not willing to agree to pay the arrears and reinstate maintenance, it may be necessary for you to file an application to Court to enforce the order.
There are a number of ways you can seek to enforce an order; you can seek for your former spouse to be sent to prison, to receive some of your former spouse’s remuneration from employment or you can charge assets. You may also be able to seek a “pay-up summons”, an order that is becoming more and more common.
A pay-up summons is an application for an order that your former spouse meet the outstanding arrears. However, under such an application, you can indicate by which method you wish to enforce the order or, you can ask the Court to consider which method of enforcement is most appropriate. When making the application, you will need to set out what sums are owed and to demonstrate how you have calculated this figure.
The Court will then require your former spouse to attend a hearing and provide details of their financial position. The Court can impose severe penalties should your former spouse not attend.
A point to note is that you will need permission from the Court should you wish to seek payment of arrears for a period greater than 12 months. So, do not delay making an application if arrears are mounting up. You will need to consider alternative enforcement methods if your former spouse if living overseas.