Maintenance, also known as spousal maintenance or spousal support, is a court-ordered financial arrangement made following the breakdown of a marriage or civil partnership. In England & Wales, this financial support is designed to assist one party in sustaining a reasonable standard of living when there is a significant imbalance in income or earning capacity between the former spouses. This support can be vital, particularly where one party has taken time out from work to care for children or has fewer future earning prospects.
It is important to differentiate between types of maintenance. There is child maintenance, which is governed largely through the Child Maintenance Service (CMS), and spousal maintenance, which is agreed between parties or awarded by the courts as part of a financial order when finalising matters after divorce or dissolution. This article focuses on the steps one can take when an ex-spouse fails to meet their obligations related to spousal maintenance as directed by a family court under the jurisdiction of England & Wales.
Why Spousal Maintenance is Ordered
Spousal maintenance is not automatic. Courts consider a variety of factors outlined in the Matrimonial Causes Act 1973 when determining whether such support is appropriate. These include the length of the marriage, the standard of living enjoyed during the marriage, the age of each party, and contributions made to the marriage—both financial and otherwise.
Once maintenance is awarded, it can be for a fixed period, generally referred to as a term order, or, in rarer cases, for life until one of the parties dies, remarries, or the court makes another order. If your ex-spouse stops paying this maintenance, it can place considerable financial strain on your life, and legal recourse should be sought to rectify the situation.
The Importance of a Court Order
If spousal maintenance was agreed upon informally or by agreement during mediation but was never sealed by the court, the options for enforcement are far more limited. That is why it is vital from the outset for any financial agreement following the end of a marriage to be formalised through a consent order approved by the family court. Once incorporated into a court order, the maintenance becomes legally binding and enforceable by the courts.
Where no order exists, and your ex-spouse refuses to pay agreed maintenance, your recourse may be limited to civil action for breach of an informal agreement—a considerably weaker position than that offered by a binding court order.
Initial Steps to Consider
Before embarking on formal enforcement proceedings, it is sensible to take initial steps to clarify the matter. In some cases, non-payment may be due to genuine financial difficulties rather than wilful avoidance.
Start by contacting your ex-spouse in writing, ideally by email or letter, to raise your concerns and inquire about the unpaid maintenance. Sometimes, open communication can resolve the issue quickly, particularly if the failure is temporary.
If direct communication doesn’t resolve the issue, and your ex-spouse claims they can no longer afford to pay due to a change in circumstances, they should apply to the court to vary the maintenance order. Unless and until the court changes the amount payable, the original order remains legally binding.
If they refuse to pay or ignore your correspondence, you may have no alternative but to explore formal enforcement mechanisms through the family court.
Applications for Enforcement
When maintenance is unpaid and the court order is being contravened, the receiving party can apply to the court for enforcement. There are several options available under the law of England & Wales, and depending on the specific circumstances, the court can use a variety of methods to ensure payment is made.
You can make an application under the Family Procedure Rules 2010 using Form D50K: ‘Application for enforcement by such method of enforcement as the court may consider appropriate’ or variations depending on the route you wish to take. In your application, you will need to provide evidence of the missed payments and any communication between you and your ex-spouse. Supporting documentation such as bank statements and the original court order will be required.
Methods of Enforcement Available
Each method of enforcement has its own mechanics and suitability depending on the ex-spouse’s financial circumstances and assets. The court has discretion in choosing the most appropriate method and may use more than one simultaneously if necessary.
Attachment of Earnings Order (AEO)
This is one of the most common enforcement methods. If your ex-spouse is employed, the court can order their employer to deduct maintenance payments directly from their wages. This ensures that you receive payment before the ex-spouse has access to their income.
However, this option only applies if the ex-spouse is in conventional employment. If they are self-employed, unemployed, or work irregularly, the order may have limited or no effect.
Third Party Debt Order
If the ex-spouse has money in a bank account or is owed money by someone else, a third party debt order allows you to intercept those funds and have them redirected to you in satisfaction of the debt. This process involves identifying the third party, usually a bank, and securing the court’s permission to access those funds.
Charging Order
If the ex-spouse owns property, a charging order can be placed against the asset. This doesn’t result in immediate payment but secures the debt against the property. When the property is sold, your claim must be satisfied prior to or during the process. In some situations, it is possible to apply for an order for sale to force the disposal of the property in order to recover money.
Warrant or Writ of Control
If you know that your ex-spouse owns physical assets such as vehicles or valuable possessions, you can ask the court to issue a warrant of control, allowing court bailiffs or enforcement agents to seize and sell goods to satisfy the debt. This step should be considered carefully, especially if the value of assets is unclear or the ex-spouse is evasive.
Committal to Prison
This is a method of last resort. If your ex-spouse is found to be deliberately avoiding payment, and the law considers it ‘wilful refusal’ or ‘culpable neglect,’ then the court can commit them to prison for contempt of court. Such an application requires a high threshold of proof and must follow strict procedural safeguards, but it serves as a powerful deterrent in persistent cases of non-compliance.
Costs Implications of Enforcement
The receiving party typically bears the up-front costs of enforcement, although it is common for the court to order that these costs be repaid by the non-compliant ex-spouse. Keep detailed records of all financial outlays, including legal advice and court fees, as you may wish to seek their recovery as part of the enforcement proceedings.
Legal aid is limited when it comes to post-divorce financial enforcement matters, so those without sufficient funds may need to explore other options such as fixed-fee legal services or self-representation with guidance from family law charities or Citizens Advice.
Varying a Maintenance Order
Sometimes the failure to pay is linked to a genuine downturn in the payer’s fortunes. In these circumstances, it may be appropriate to revisit the original maintenance award and consider varying the order. Either party may apply to vary the amount, depending on a change in financial circumstances.
Your ex-spouse cannot simply stop paying or reduce payments without a court order varying the terms. Until such variation is made by the court, the original amount remains enforceable.
You (as recipient) can also apply to vary the amount upwards if your financial needs have significantly increased, although the burden remains on you to justify such a change. The court will re-examine financial disclosure from both parties before changing any arrangements.
Consideration of CMS for Child Maintenance
If your maintenance also includes child support and your ex-spouse has stopped paying, an application to the Child Maintenance Service (CMS) may be appropriate. Although this doesn’t cover spousal maintenance, in cases involving both types, a coordinated approach may be necessary.
Under the CMS’s Collect and Pay service, payments can be tracked and collected robustly, with penalties and interest applied to late payments. However, it should be noted that the CMS may have less flexibility than the courts with regard to personalised arrangements made under court-ordered agreements.
Mediation and Alternative Dispute Resolution
Before applying to court, it may be advisable to consider mediation as a means of resolving the dispute. Family mediators help both parties explore options in a neutral environment, and in some instances, agreements reached in mediation can be more readily adhered to than those imposed by the courts.
A successful mediation can lead to a new agreement that is later made into a consent order. However, if the other party refuses to mediate or fails to honour any agreement reached, court action will remain the only viable option.
Preventing Future Non-Payment
It is important to safeguard your position with well-drafted and enforceable financial orders. Include specific payment terms, due dates, and clearly defined consequences for late or missed payments. In higher-conflict situations, it may be helpful to request from the outset that any maintenance payments be made through a standing order or via an Attachment of Earnings system.
Regular reviews and open communication (where possible) can also prevent escalation. Keeping records of each payment, including amounts and dates, will be crucial if enforcement later becomes necessary.
Conclusion
Unpaid spousal maintenance can have a serious impact on your financial wellbeing and sense of justice after divorce. While enforcement mechanisms under the law of England & Wales are available and relatively robust, the process can be lengthy and emotionally draining.
The key is to act promptly, seek legal advice early, and document all interactions meticulously. Whether through communication, mediation, or formal enforcement, the aim is to secure compliance and uphold the financial agreement the court has ordered.
Facing an ex-spouse who refuses to meet their obligations is undeniably stressful, but the law does offer avenues for redress. Being informed and prepared is your best line of defence.