9. What can the wife/husband do if the other party refused or failed to make maintenance payment?

9. What can the wife/husband do if the other party refused or failed to make maintenance payment?

You may consider the following ways to enforce the court order for maintenance against your spouse:

a. Judgment summons

You can apply for a judgment summons according to Rule 87 of the Matrimonial Causes Rules to summon your spouse to the court to reveal his or her financial strength to settle the arrears ("Examination Summons") or to commit your spouse to prison ("Committal Summons"). The examination process and committal process are separate and distinct and must be applied for separately under separate procedures.

There should be no delay in pursuing for the outstanding amount as the court might refuse to enforce the order of payment for those arrears due more than 12 months before proceedings to enforce the payment of them have begun.

Under the Examination Summons, the judge has the power to make a new order for payment of the amount due. If your spouse fails to attend the hearing, the court will adjourn the case to a further hearing and order your spouse to attend the adjourned hearing. If he or she still fails to attend on the adjourned hearing, the judge can issue an warrant of arrest against him or her. The bailiff will be ordered to arrest your spouse and bring him or her to the court.

Under the Committal Summons, the judge can commit your spouse to prison if he or she cannot justify his or her failure to pay. Any committal to prison can be suspended on terms that your spouse settles the arrears or makes relevant arrangements.

b. Attachment of income to satisfy order

With reference to section 28 of the Matrimonial Proceedings and Property Ordinance, where a maintenance order has been made against a maintenance payer and:

1. a court is satisfied that the payer has without reasonable excuse failed to make any payment which he is required to make by the maintenance order; or
2. a court is satisfied that there are reasonable grounds to believe that the payer will not make full and punctual payment in compliance with the maintenance order; or
3. the payer and designated payee agree to the making of an order under this section; and

there is any income capable of being attached payable to the payer,

the Court may order the income to be attached as to the whole or part of the amount payable under the maintenance order and the amount attached to be paid directly from the payer's sources of income (e.g. his/her employer) to the specified payee. However, the payer could retain certain amount for his/her reasonable living expenses before such deduction.

c. Prohibition order

It is possible to apply to the Court on an ex-parte basis (applied unilaterally by one of the parties only) for an order that your spouse be prevented from leaving Hong Kong pending recovery of the debt.

If granted, the order is served on the Director of Immigration and your spouse will not be allowed to depart if he or she attempts to leave Hong Kong.

This procedure can be very effective in particular when your spouse travels frequently as it is likely to cause your spouse considerable inconvenience. However, you should bear in mind that the Court is reluctant to limit a person's liberty in this way. Therefore such an application should only be made as a last resort only when every other method of enforcement has been exhausted and proved inappropriate.