Introduction

Failing to make maintenance payment pursuant to the court’s maintenance order is not uncommon nowadays.  Apart from financial constraint or incapacity to pay, sometimes a dissatisfying former spouse may refuse to make maintenance payment to the other party, even if he/she has the means to pay it.  This article aims to discuss (i) the current mechanism in handling this kind of situation by way of court application and (ii) the court’s view over the regime in light of the recent decision of YBL v LWC [2016] HKEC 2791.

Current regime of judgment summons

Under the present system, if a former spouse (the “Judgment Debtor”) refused or failed to make payment in accordance with the maintenance order, the person entitled to the maintenance payment (the “Judgment Creditor”) may consider to enforce the court order by way of an application of judgment summons.

Once the application is made, the Judgment Debtor will be examined by the court to reveal his/her financial ability to settle the maintenance order (the “Examination Process”).  The Examination Process allows the Judgement Creditor to obtain more information on the financial ability of the Judgement Debtor.  If it is proved by the Judgment Creditor that the former spouse had wilfully failed to pay or has disposed of assets with a view to avoid payment, the court has the power to commit the Judgment Debtor to prison for up to three months (the “Committal Process”).

In the event that the Judgment Debtor is absent at the hearing, the court will adjourn the case to a new date and require him/her to attend.  If he/she still fails to attend on the adjourned hearing, the judge can commit the Judgement Debtor to prison in his/her absence.

The threat of imprisonment

Given the serious consequences of imprisonment, the Court is generally cautious in committing the Judgment Debtor into prison.  In X v Y [2002] HKEC 823 , the High Court held that an order of commitment is the very last resort and should be reserved for the Judgment Debtor who has shown “contumelious disregard” to a maintenance order.  In some cases, for example in BT v YHK [2015] HKEC 1880, the Court would provide a “second chance” for the Judgment Debtor to pay by making an order to commit the Judgment Debtor suspended upon payment of the outstanding debt (i.e. the Judgment Debtor would not be immediately imprisoned for his/her deliberate default, provided that he/she pays the outstanding maintenance payment within the deadline set by the court).

Call for a reform of the existing regime

Another issue which relates to the constitutionality of the judgment summons regime was recently discussed in YBL v LWC.  In this case, the Court of Appeal (“CA”) dismissed a committal order against the Judgment Debtor, who was, inter alia, committed by the lower court into prison for 3 months due to his continuous default in making monthly maintenance payment, on the basis that the existing regime of judgment summons violates the Hong Kong Bill of Rights.  The CA, in reviewing the existing judgment regime, stressed that there is an urgent need to revise the current practice.   The CA is also of the view that it would be necessary for the Family Court, at least for the time being, to issue a practice direction to set out the proper practice and to consider publishing leaflets and standard forms to assist and guide litigants in person in applying and defending judgment summons.

Conclusion

In light of the comments made by the Court, considerable caution should be taken when applying for enforcement of a maintenance order by way of judgment summons.   Other enforcement methods, such as an attachment of income order to require the employer of the maintenance payer to deduct certain sum from his/her pay to be used to pay off the arrears, could be more effective if the circumstances allow.  After all, we should always bear in mind that all court orders shall be strictly complied with.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.