Although spousal or civil partner maintenance can be paid voluntarily, if voluntary maintenance stops being paid, there is no method of enforcing payment through the court. However, either spouse or civil partner can make an application to the court for a spousal or civil partner maintenance order.
The court will expect the parties to have considered resolving the matter through mediation, before a court application is made. Mediation involves a neutral third party who assists the individuals to work towards a negotiated settlement, and is generally a much more amicable and cost effective method of resolving disputes.
If the court makes an order for the payment of maintenance from one spouse or civil partner to the other, they cannot simply stop paying, without the court order being discharged. This will be a breach of the order. The paying party would potentially be liable for the arrears, interest and face the risk of having to meet the legal costs incurred by the payee. There is also a risk that the payer could be liable to be committed to prison if they wilfully refuse to pay after the court has made orders.
It is an unfortunate reality that the spouse who usually needs the payment is the party who is required to pay the costs of, and spend the time, trying to recover payment in the first instance. This can be a stressful time for the spouse who is entitled to receive regular payments of maintenance, as they are usually already financially stretching themselves, without the additional expense of legal costs.
If payment is not forthcoming, the following options are available:
- The parties can engage in mediation to establish why the payment has not been made, whether the payer can afford to continue making payments to the same level, and whether the amount is still required by the receiving spouse, to meet their needs and how the payments should be restarted, dealing with any arrears too.
- If mediation is unsuccessful an application can be made to the court for enforcement of the maintenance order.
- In some circumstances it is possible to consider exchanging an entitlement to income, for a lump sum by way of capitalisation of the maintenance order. In doing this the court would first assess the payment which should be made at the time of the application and how long it should be paid for, and only then determine what the appropriate lump sum should be (if the payer can afford it of course). This approach can impact on the lump sum payable because if the amount of support that is payable has reduced this would also reduce the lump sum payable to buy it off.
If the payer lives abroad, there are reciprocal arrangements in foreign countries for enforcing the payment of maintenance across most countries, but this can be slow.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2022.