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Constantinides v Constantinides [2013] EWHC 3688 (Fam)

Enforcement proceedings for non-compliance with a maintenance order in which the Court examines the test for determining whether the non-paying party has means to pay


The husband had been ordered to pay maintenance to the wife in the sum of £750pcm in an order made in 2004. The husband failed to make any maintenance payment to the wife and by July 2013 the arrears were £78,000. The wife had applied on a number of occasions during this period to enforce the order and/or secure payment but had not been successful. In 2013 the wife applied to the magistrates’ court where the order was registered for the husband’s committal to prison for non-payment of the maintenance order.

On 4 July 2013 the District Judge in the magistrates’ court committed the husband to prison for six weeks for non-payment of the order. The husband appealed the next day. The appeal did not come before the High Court until 6 November 2103. Holman J allowed the appeal and discharged the committal order.

Holman J reviewed the applicable legislative framework and noted that in the High Court and county court the mechanism for enforcement of maintenance debts by imprisonment is by way of judgment summons pursuant to section 5 of the Debtors Act 1869.  This provision requires that the court be satisfied that the debtor “has or has had … the means to pay”.  Applications for judgment summons are also governed by rule 33 of the Family Procedure Rules 2010 which provides that the judgment creditor must prove that the debtor has or had since the date of the order the means to pay the sum in default and has refused or neglected to pay that sum.

Holman J was satisfied that Section 5 of the Debtors Act 1869 and rule 33 of the Family Proceedings Rules 2010 did not directly apply to magistrates’ courts or Family Proceedings Courts. However, rule 33 could be applied by a magistrate pursuant to section 65(2) of the Magistrates Courts Act 1980 if the magistrate ordered that the application be treated as family proceedings.

It was accepted that the provisions in the magistrates’ court which applied to an application for enforcement of a maintenance order were found in sections 76 and s.93(6) of the Magistrates’ Courts Act 1980. Holman J was, however, unable to identify any rule of the magistrates’ or Family Proceedings Court which applied to, or impacted upon, this type of application if the court did not treat the application as family proceedings, as was the case here.

In this case the District Judge had correctly identified that the application was to be determined in accordance with section 76 and section 93(6) of the Magistrates Court Act. Section 93(6) provides that the court must be satisfied that the default was due to the defendant’s wilful refusal or culpable neglect.

Holman J therefore identified a difference in the wording in the test to be applied by the magistrates’ court and the county court or High Court when hearing an application for enforcement of a maintenance order by imprisonment. Section 93(6) of the 1980 Act requires that the default be due to the defendant’s wilful refusal or culpable neglect.  The proviso to section 5 of the Debtors Act does not include the words “wilful” or “culpable”.  Section 5 does, however, does require that the court is satisfied that the person making default “either has or has had … the means to pay … and has refused or neglected, or refuses or neglects, to pay”.

Holman J concluded that Parliament could not have intended that different criteria for imprisonment should apply dependant on whether the case proceeded in the magistrates’ court or the High Court/county court. Therefore the two sections are to be construed and applied so as to have the same practical result and effect and a magistrates’ court should proceed in a way that has regard to the very clear requirements of rule 33 of the Family Proceedings Rule 2010 and must be satisfied that the person in default has or had the means to pay.

Holman J considered how “means to pay” should be interpreted and observed that the ordinary and natural meaning of the word “means” is income or assets of some kind. Holman J also stated that in the context of an application for committal “means to pay” does not include the potential earning capacity of the person in default. The District Judge had therefore erred in law when he committed the husband to prison on the basis that he had an earning capacity which he was choosing not to use and therefore was wilfully refusing and/or neglecting to pay the maintenance ordered