In the case of Constantinides v Constantinides  the husband was ordered to pay periodical payments to his wife for their joint lives or until the wife’s remarriage or further Order of the Court. The husband failed to make a payment in accordance with the terms of that Order for a period of 9 years which resulted in the wife commencing enforcement proceedings.
The husband was arrested and the case was heard at the Magistrates Court. The husband claimed that he did not have any income, capital or other assets so as to be able to pay maintenance in accordance with the Order. The Judge held that the husband had been, from time to time, in employment and had other sorts of income from which he could have made a payment.
The Judge recorded that she was proceeding under Section 3 of the Maintenance Orders Act 1958 and Section 98 of the Magistrates’ Court Act 1980 which requires the Court to be sure there had been a wilful refusal or culpable neglect which had been ongoing before the husband could be committed to prison. The Judge concluded that the husband had an earning potential and could have applied for benefits so as to pay maintenance. The Judge held that there had therefore been a wilful refusal and culpable neglect. The husband was committed to prison for a period of 6 weeks for non-payment of the periodical payments Order. The arrears amounted to approximately £78,000.
The husband appealed to the High Court on the basis that he had not been lawfully committed to prison. The Court held that a Magistrates Court could not find, for the purposes of the Magistrates’ Court Act 1980, that there had been a wilful refusal or culpable neglect unless it was satisfied that the person in default has or had the means to pay the Maintenance Order. The Court held that the fact that the District Judge had believed the husband had an earning potential which he chose not to exercise or maximise was not sufficient to imprison the husband and therefore the Order for Committal was discharged.