Can one be imprisoned for not making maintenance payments?
After the divorce, if the payment of maintenance is in arrears, the payee is entitled to apply to the court for a court order within a year to pursue proceedings against the debtor.
Court orders are the most common solution to the issue of failure to make maintenance payments. If the court grants leave to the payee’s application, the debtor would be summoned to attend the trial, to assess the circumstances of the debtor and whether an order shall be made. The court may hand down the following judgments:
- If the debtor attends the hearing, the court may order the payer to pay the maintenance in arrears, interest on arrears of maintenance and costs.
- If the debtor is absent from the hearing, the court will adjourn.
- If the debtor is absent from the hearing twice, the registrar may issue an order of committal (detention order).
In the first situation, even if the payer attends the trial, the courts may, in its discretion issue an order of imprisonment. According to order 49B rule B1 of The Rules of the High Court, even if the judgment debtor is able to satisfy the judgment and comply with the order to pay, the court may, in its discretion, order the imprisonment of the judgment debtor if the court is satisfied that the judgment debtor means of making maintenance payments but wilfully evaded from such liability; the judgment debtor had disposed of assets with a view to avoiding satisfaction of the liability to pay maintenance; the judgment debtor has wilfully failed to make a full disclosure of his financial ability or to answer any question in the examination. The maximum period of imprisonment under such order is 3 months.
In the case of Kao, Lee & Yip v Koo Hoi Yan  5 HKC 36, if the judgment creditor can prove beyond reasonable doubt that the judgment debtor has the means to make payments within the period ordered by the court, the creditor may contend that the debtor is guilty of civil contempt and apply for an order of imprisonment.
Further, it should be noted that in the case of CYM v YML  1 HKLRD 701, judgment summons resulting in the imprisonment of the judgment debtor should be a last resort. The judgment debtor shall first answer questions relating to the arrears of maintenance, and the court would make new orders of payment and adjust the period of such payments with reference to the judgment debtor’s existing financial circumstances to ensure regular repayments can be made. That said, all persons, especially those who are financially sound, shall pay maintenance periodically and not evade from such liabilities. If you have financial difficulties and become unable to make maintenance payments, please notify your former spouse and negotiate new maintenance payment arrangements. If communications have failed, please seek help from solicitors or the Legal Advice Department and apply to the court for orders of adjustment.
Ms. Ngan is on the panel of Solicitors for the Legal Aid Department of criminal matters, matrimonial/family law, employee compensation, personal injury, medical negligence, and land disputes and has participated in cases related to the Hague Convention on the Abduction of Children, which involved parental abduction of children in and out of the country. In addition, she provides legal advice to clients concerning marriage or relationship breakdown, drafts pre-nuptial and post-nuptial agreements, separation deeds and divorce agreements, and assists to delete non-biological father’s name on birth certificate. Ms Ngan is also experienced in handling void marriage petition, unreasonable behavior divorce petitions, litigation regarding the validity of the Enduring Power of Attorney (EPA), applying for Guardianship Order, Debt-related legal advices, employees’ violations of fiduciary duties such as conflict of interests and breach of confidentiality, applications for Dependent Visas, Company, Shares and Property transfers Due Diligence Check, Building Mortgages, Re-mortgage of public housing flats/HOS units, handling landlord-tenant dispute cases, Adverse Possession, cases involving investigations by the Independent Commission Against Corruption, Immigration Department or Police Force, traffic crime cases, criminal defense or mitigation, probate application for Hong Kong residents who have died outside Hong Kong, civil litigation and debt claims, etc.