After months of waiting, you finally received your divorce order. In the divorce order, your former spouse promised to pay you spousal maintenance and child maintenance every month. At first, your spouse paid the maintenance on time every month. However, one year later, he started paying maintenance late, giving various excuses and only after you kept chasing for the payments. Eventually, the payments stopped altogether and he ignored your calls and messages.
What can you do to claim for the maintenance that you were supposed to receive? In this FAQ, we will briefly explain one of the most common methods that can be used to claim for arrears in maintenance – committal proceedings.
Frequently Asked Questions
1. What are committal proceedings?
Committal proceedings are proceedings brought by a party against another party for the other party’s breach of the terms of a court order.
In matrimonial proceedings, committal proceedings can be commenced if a spouse (“Payer”) fails or neglects to comply with a term in the divorce order for payment of spousal or child maintenance to the former spouse (“Payee”). This is because the Payer’s non-compliance with the divorce order can be construed as a contempt of court.
2. Where can applications for committal be filed?
Committal applications are usually filed at the same High Court where parties obtained their divorce order.
3. When can committal proceedings be commenced?
Strictly speaking, committal proceedings can be commenced once a Payer fails to make a payment of maintenance by the time specified in the divorce order. However, it is also common for Payees to commence committal proceedings after the accumulation of many months of non-payment by the Payer.
4. How many stages are there in committal proceedings?
Committal proceedings are split into two parts:
a) Leave stage
b) Hearing proper
The leave stage of committal proceedings is for the Payee to obtain “permission” from the court to commence committal proceedings against the Payer due to his non-payment of maintenance. At this stage, the court will consider whether the Payee has established a prima facie case of contempt of court by the Payer.
At the leave stage, the proceedings are ex-parte, meaning only the Payee or the Payee’s lawyers will be present during the hearing.
Once leave is granted, the court will schedule a hearing to hear the committal proceedings on its merits. In other words, the court will decide based on the evidence provided whether the Payer is indeed in contempt of court due to his non-payment.
At this second stage, both the Payee and Payer or their lawyers will be present during the hearing.
5. What are the consequences to the Payer if the court decides that the Payer is in contempt of court?
If the court finds that the Payer is in contempt of court, the court will usually impose either:
a) A term of imprisonment; or
b) A fine
However, the court will usually only impose a term of imprisonment if there are serious or repeated breaches of the divorce order by the Payer.
If the Payer has been imprisoned but subsequently makes full payment of all the arrears in maintenance to the Payee, the Payer can apply to the court to be discharged from prison.
6. What if the Payer does not appoint a lawyer and does not appear in court during the date of hearing of the committal proceedings even though he has been notified of the hearing date?
The court can issue a warrant of arrest against the Payer to compel his attendance at the next hearing date fixed by the court.
7. Are there other things that a Payee should look out for before commencing committal proceedings against the Payer?
A Payee should look into the divorce order and see whether the divorce order contains a penal notice.
A penal notice is a statement which puts the Payer on notice that if he fails to comply with the divorce order (e.g. make maintenance payments on time), then the Payee can commence committal proceedings against the Payer to compel him to do the same.
An example of a penal notice is as follows:
“If you, the within-named [Payer] neglect to obey this order by the time therein limited, you will be liable to the process of execution for the purpose of compelling you to obey the same.”
8. What if there is no penal notice in the divorce order?
There have been instances where courts have dismissed committal applications by Payees on the ground that there was no penal notice in the original divorce order.
However, certain steps can be taken by lawyers to overcome this problem and subsequently insert a penal notice into the divorce order.
Committal proceedings are usually an effective method to claim for arrears in maintenance from an ex-spouse due to the possibility of the ex-spouse being sentenced to a term of imprisonment at the conclusion of the committal proceedings. If your ex-spouse fails to pay maintenance as required under the divorce order, do consider commencing committal proceedings against him/her instead of suffering in silence.
By Eric Toh
Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.