Constantinides v Constantinides

A maintenance debtor may be committed to prison only if the court is satisfied that the debtor has, or has had, the means to pay and has refused or neglected to pay. In magistrates’ court proceedings, the requirement of wilful refusal or culpable neglect under the Magistrates’ Courts Act 1980 must be applied consistently with the means-to-pay requirement in the Debtors Act 1869. Earning potential alone is not means to pay. Nor is an unspecified possibility of claiming benefits a sufficient basis for imprisonment. The court should have regard to the safeguards in rule 33.14 of the Family Procedure Rules 2010, even where that rule does not directly apply.

The husband appealed against an order of District Judge Crane, made in the Tottenham Magistrates’ Court on 4 July 2013, committing him to prison for six weeks for non-payment of maintenance arrears. The maintenance order required him to pay his former wife £750 per month. He had paid nothing for more than nine years, but the district judge stated that she could not be sure that he currently had income, capital or assets. She nevertheless found wilful refusal and culpable neglect because he had earning potential and could apply for benefits. The central issue was whether those findings provided a lawful and sufficient basis for imprisonment.

1. Appeal allowed. The committal order made on 4 July 2013 was discharged.
2. Under section 5 of the Debtors Act 1869, imprisonment for default requires proof that the debtor has or has had, since the order, the means to pay and has refused or neglected to pay. Rule 33.14 of the Family Procedure Rules 2010 expresses the same safeguard for judgment summonses in the High Court and county court.
3. Although section 5 of the Debtors Act 1869 does not directly confer the power on magistrates’ courts, sections 76 and 93(6) of the Magistrates’ Courts Act 1980 must be construed so that the practical criteria for imprisonment do not vary according to the court in which enforcement occurs. A magistrates’ court cannot find wilful refusal or culpable neglect unless satisfied that the debtor has or has had the means to pay. It should also proceed with regard to rule 33.14.
4. The ordinary meaning of “means” is income or assets of some kind. Earning capacity is expressly relevant when making financial provision under section 25(2)(a) of the Matrimonial Causes Act 1973, but it is not included in the imprisonment safeguards. Imprisonment for failing to maximise earning capacity would be an intolerably speculative use of the sanction.
5. The district judge had been unable to identify any current income, capital or assets. Her finding rested on earning potential and the husband’s supposed ability to claim unspecified benefits. She did not identify the benefits or their level, and benefits ordinarily provide subsistence rather than a surplus sufficient to meet substantial maintenance. Those findings could not lawfully support imprisonment.

• High Court (Family Division): allowed the husband’s appeal against the Tottenham Magistrates’ Court order of 4 July 2013 and discharged the committal order.