Rogan v Rogan

On a judgment summons for arrears of spousal maintenance, imprisonment requires proof to the criminal standard that the debtor had, or has had, the means to pay and deliberately refused or neglected to do so. Means are not confined to regular salary, dividends or other periodic income. A continuing capacity to borrow may itself constitute a financial resource. The court may examine discretionary expenditure and decide whether the debtor chose to prioritise it over the maintenance obligation. Where those elements are proved, the default may amount to wilful and culpable contempt of court.

A former wife sought the committal of her former husband for substantial arrears of spousal maintenance ordered under consent orders made after their divorce. The maintenance was payable until discharge of an agreed lump sum, but the judgment summons proceeded only in respect of maintenance arrears, not the unpaid lump sum.

The husband had no regular periodic income and relied on borrowing between successful business transactions. The central questions were whether he had the means to pay the arrears and, if so, whether his failure to pay was deliberate and culpable under section 5(2) of the Debtors Act 1869.

1. The court found, to the criminal standard, that the husband had failed to pay £55,000 due when the judgment summons was issued and that total arrears had risen to £87,000 by the hearing. The unpaid lump sum and interest were not pursued in the summons and were left out of account.
2. Under section 5(2) of the Debtors Act 1869, committal required proof that the debtor had, or had had since the order or judgment, the means to pay and had refused or neglected to do so. The applicable standard was proof so that the court was sure.
3. The absence of regular salary, dividends or other reliable periodic income did not establish inability to pay. The husband had an established business practice of borrowing during lean periods and repaying loans after profitable transactions. His capacity to borrow was itself a financial resource and constituted means.
4. The court assessed the husband’s bank receipts, borrowing and discretionary expenditure. He had spent substantial sums on two weddings and other optional personal expenditure while making no meaningful payment towards maintenance. Those choices showed that he could have paid the arrears but deliberately prioritised other expenditure.
5. The wife therefore proved that the husband had the means to pay, had refused or neglected to pay, and that the refusal or neglect was deliberate, wilful and culpable, amounting to contempt of court.
6. After an adjournment, the parties agreed that the question of sanction would be adjourned until 18 March 2019, on terms requiring payment of the arrears, future instalments and an agreed sum for costs.