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Missing maintenance payments leads to imprisonment

View profile for Kevin Horn
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Parents failing to make maintenance payments to a former partner to support their children is unfortunately a situation that is regularly seen in our Courts.  For those who cannot afford to pay adjustments can be made to support both parties as a whole to act in the children’s best interests, however when a party has the means to make payments but simply avoids them, stronger measures can be taken by the Courts.  Kevin Horn, Family Law Partner, here reviews a case in which the father was able to pay and met rather unexpected consequences.

In the case of Mr and Mrs Prest, Mr Prest was served with an enforcement of a child maintenance order by Judge Moylan in 2011.  He was believed to be worth about £37.5 million and was required to pay Mrs Prest a lump sum of £17.5 million, which was to be paid by the transfer of several properties.  Pending discharge of the lump sum, Mr Prest was to pay periodical payments at the rate of 2% per annum on the amount outstanding as well as child maintenance for the couple’s four children.  Payment was not made by Mr Prest in accordance with the order so in April 2013, Mrs Prest issued a judgement summons which was granted in July 2014 in the sum of £360,200.

Mr Prest did not attend Court on the hearing of the summons and applied for an adjournment on the basis he’d been unwell.  Judge Moylan refused the application to adjourn and when Mr Prest arrived with 2 medical reports he also refused to hear his counsel on the ground that it was too late.

Judge Moylan went on to find that Mr Prest was in default in the sum of £360,200, even though he had the means to pay and so had wilfully failed to pay the sum due.  On this basis, he ordered a four week term of imprisonment, which was suspended for 3 months to give him the opportunity to pay.

Mr Prest consequently appealed to the Court of Appeal on a number of grounds, each of which was dismissed.

The first point of appeal was on the Judge’s decision to refuse an adjournment, so as to further investigate the husband’s ill-health.  The Court of Appeal decided that this did not deny Mr Prest a fair trial and did not breach his human rights.  The second point was regarding the four-week prison sentence, which was found to not be excessive when viewed against a backdrop of a default in payment of £320,000.

Prior to the judgement hearing, Mr Prest had applied for a variation to the periodical payments order and he stated in his appeal that this should have precluded the Judge from proceeding with the judgement summons.  The Court of Appeal found that this wasn’t the case, and finally they also found that it had not been agreed that Mr Prest could make payments for household items in lieu of maintenance, as he had claimed it was.  It wasn’t acceptable for Mr Prest to choose which household items to pay for while still failing to make the maintenance payments ordered, as this undermined the basis for the order in the first place.

Kevin advises, “The reason for the failure of Mr Prest’s appeal was his undoubted ability to pay what he was ordered to.  The case should serve as a warning to those who avoid their financial obligations when they do have the means to pay.  The burden of proof will always lie with the party against whom an order for the payment of money is made to show that he or she is not able to make such payment.  Provided the application for the judgement summons complies with all necessary procedural requirements a period of imprisonment, albeit suspended, is not an unexpected outcome.  Judgement summonses hence remain a useful, if draconian, enforcement tool.”

If your former spouse is refusing to make the payments they have been ordered to make, then you can contact Kevin or a member of the Family team on 02380 717431 or visit their section of the website here.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.