What If Your Ex-Spouse Refuses to Pay Maintenance?

What happens when payments stop?

A maintenance order is legally binding. If your ex-spouse stops paying, or pays less than ordered, they are breaking a court order. It is not just a private disagreement.

This applies to spousal maintenance, child maintenance, or both. Under Section 86 of the Law Reform (Marriage and Divorce) Act 1976, unpaid maintenance can be recovered as a debt.

Act within three years

Section 86(3) says maintenance that fell due more than three years before you start your claim cannot be recovered. The longer you wait, the more you risk losing.

Contempt of court

Your lawyer can file a committal application asking the court to find your ex-spouse in contempt. If the court finds the non-payment deliberate, it can impose a fine or prison.

The aim is to get them to pay. The threat of prison often works.

The court lets them explain first. If they show they truly cannot pay, the court may look at varying the order instead.

Salary deductions

An attachment of earnings order tells your ex-spouse’s employer to deduct the maintenance from their salary and pay it to you. They can no longer choose not to pay.

Your lawyer shows the court the maintenance order and the arrears. The court sets the monthly deduction, and the employer must comply. If your ex-spouse changes jobs, you can apply for a new order against the new employer.

This works best for someone in regular employment. If they are self-employed or have irregular income, other methods may suit better.

Recovering arrears

The court can order your ex-spouse to pay the arrears in one sum or in instalments, depending on their finances.

A judgment debtor summons makes your ex-spouse come to court and disclose their finances under oath. The court can then order payment based on what they can really afford. It also helps expose hidden income or assets.

A garnishee order can take money from their bank accounts, or redirect money that third parties owe them.

What if they say they cannot afford it?

The proper step for them is to apply to the court to vary the maintenance order. Until the court changes it, the full amount stays due. They cannot reduce or stop payments on their own.

The court will look closely at their financial situation. A real job loss or drop in income may lead to a lower amount. A drop created to avoid paying will not.

What to do now

• Keep records of every payment received and missed, with dates and amounts. Bank statements are good evidence.
• Act early. Do not wait for several missed payments. A small debt is easier and cheaper to recover than a large one.

Looking to engage a divorce lawyer? If your maintenance has stopped and you want to know which option fits your situation, request independent lawyer contact via WhatsApp: Request Lawyer Contact. For general information, use our guides and tools.