Lie Chin Chin

What Can You Do if Your Ex-Spouse Refuses to Pay Maintenance Fees?

SUMMARY:

This article will inform you about what you can do if your spouse refuses to maintain you or your children whether or not a court order for maintenance has been made. 
 
You and your children may depend on your (ex-)spouse to make financial provisions. As such, it may be distressing, worrying and frustrating to discover that your spouse refuses to provide maintenance for you or for the children. Unfortunately, this situation can even arise when parties are contemplating divorce, where a marriage has deteriorated and the relationship between you and your spouse is no longer as close as before, or even during the divorce process
 
You should know what your and your children’s rights are with regard to receiving maintenance. You should also know what actions you can take if the Court has already directed that your (ex-)spouse pay maintenance, but he/she defaults on such payment.
What if my spouse/ex-spouse refuses to pay maintenance for my children?
The law states that a parent has a duty to maintain or contribute to the maintenance of his/her child(ren), whether the child(ren) are in his/her custody or not, and regardless of whether the child(ren) are legitimate or not. Parents must either provide the child(ren) with reasonable accommodation, clothing, food and education, or pay the cost for these basic necessities. This duty remains, regardless of whether the parents of a child are divorced or not.

Procedure to applying for maintenance for children/current spouse 

If your ex-spouse/spouse is refusing to maintain or contribute to the maintenance of your children,


1. You may file a complaint with the police, or file and swear/affirm a Magistrate’s Complaint at the Family Justice Courts stating that your (ex-)spouse has failed in his/her obligation to provide reasonable maintenance.
2. In your complaint, you should state:
a. The child’s needs;
b. Your needs (if you are the wife);
c. Any assets you own (if you are the wife);
d. Any assets your child owns; and
e. Any bank accounts or credit cards.
3. If the Court decides that your complaint provides sufficient grounds for proceeding, the Court will issue a summons for your (ex-)spouse to appear before it.
4. At the hearing, the Court may then order your (ex)spouse to pay maintenance for your child(ren).

What if my divorce has not been finalised or if I am contemplating divorce, but my spouse refuses to provide maintenance for me during this time?
A husband has a duty to provide reasonable maintenance to his wife during their marriage. If your husband refuses to provide maintenance for you while you are still legally married, you may make a complaint in the same manner as you would if you were applying on behalf of your children. You and your spouse are still considered legally married as long as the final order for divorce has not been extracted.
What should I do if the Court has already ordered my spouse to pay maintenance, but he still refuses to pay?
If your spouse does not comply with an order of maintenance for your children, or does not comply with an order of maintenance for you during your marriage, you can take steps to enforce the order. There are various ways of doing this and we have listed a few of the most common and/or most effective orders to ensure that your spouse complies with the maintenance order. 1. Attachment of Earnings Order Your spouse’s employer will be ordered to deduct a sum of money from your spouse’s salary and pay this sum into Court so that you and/or your child will be able to use this sum as maintenance. 2. Imposing of a Fine Your spouse will be made to pay a fine if he fails to make one or more payments required to be made by a maintenance order. 3. Sentence of Imprisonment Your spouse can be sentenced to imprisonment for up to one month for each month’s allowance that remains unpaid. This imprisonment will not affect or diminish his/her obligation to pay maintenance unless the Court sees fit to reduce the amount. 4. Garnishing of Debts The effect of this order is that if, for example, Party A owes your spouse money, the Court will order Party A (the ‘garnishee’) to pay to you directly the amount your spouse owes you. Party A will pay you this sum out of the debt that A owes your spouse. If your order for maintenance was issued pursuant to your divorce and your ex-spouse has been defaulting on maintenance payments, you should apply to Court to enforce the maintenance order. Procedure for enforcing a maintenance order issued pursuant to divorce 1. You will have to file and swear/affirm a Magistrate’s Complaint at the Family Justice Courts. 2. You must bring: a. A copy of your Marriage Certificate (if any), b. Your child(ren)’s Birth Certificates (if you are applying for their maintenance), and c. A copy of the Court Order that you wish to enforce. Do note that you can only claim for maintenance in arrears. You cannot attempt to enforce maintenance payments in advance. If you were granted maintenance on a monthly basis and your spouse or ex-spouse continually defaults on payments, you may want to consider applying to Court to vary the Court order to obtain a lump sum maintenance (i.e. a one-off) payment instead.

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