(Family Division, Holman J, 6 November 2013)
The husband failed to comply with a court order to pay the wife maintenance of £750pm and arrears now stood at £78,000. The wife had made several unsuccessful attempts to enforce the order. In the Magistrates' court the husband was committed to prison for 6 weeks for non-payment and he appealed.
In the High Court and county court enforcement of maintenance debts by imprisonment operated by way of judgment summons pursuant to s 5 of the Debtors Act 1869 which required the court to be satisfied that the debtor had the means to pay. FPR33 also required the creditor to prove that the debtor had or had since the date of the order the means to pay but had refused or neglected to pay. Neither provision applied to the magistrates' court or the Family Proceedings Courts. FPR 33 could be applied if the magistrate ordered the application to be treated as family proceedings but otherwise there was no rule applying to this type of application if, as here, the court did not treat the application as family proceedings.
The district judge dealt with the application pursuant to s 76 and s 93(6) of the Magistrates Court Act 1980 which required the court to be satisfied that the default in payment was due to wilful refusal or culpable neglect which was different from the wording of s 5 of the Debtors Act.
The judge found that Parliament could not have intended the criteria for the two provisions to be different and therefore the sections should be construed and applied in order to have the same result. A magistrates' court should proceed with regard to FPR 33. The phrase ‘means to pay' had the ordinary and natural meaning of income or assets of some kind. It did not include the potential earning capacity. The district judge had erred when he committed the husband to prison on the basis of his earning capacity which he was not using.
The appeal was allowed and the committal order set aside.