Family

Husband and wife - occupation order in favour of wife - non-payment by husband - no power to enforce order by committalNwogbe v Nwogbe: CA (Dame Elizabeth Butler-Sloss, P, Thorpe LJ and Wright J): 29 June 2000

The parties had married in 1992 and had two children aged five and three.

In 1999 the wife was granted a non-molestation order and an occupation order and under the latter the husband was ordered to pay specified outgoings with regard to the matrimonial home.

He did not comply, and the applicant sought to have him committed to prison.

The judge found that, as orders under s.40 of the Family Law Act 1996 neither came within the exceptions to s.4 of the Debtors Act 1869 nor within sched 8 to the Administration of Justice Act 1970, there was no power to commit a defaulter to prison for non-payment and dismissed the application.

The wife appealed.

Deborah Bryan (instructed by Mackesys) for the applicant.

Shelagh Farror (instructed by Alexander & Partners) for the respondent.

Held, dismissing the appeal, that there was nothing in s.40 of the Family Law Act 1996 strong enough to imply a partial repeal of the provisions in s.4 of the Debtors Act 1869, which had abolished imprisonment for debtors except in certain specified circumstances; and that payments of money under s.40 did not constitute maintenance payments and therefore fell outside the definition of s.1 of the Attachment of Earnings Act 1971; nor did ss.11 and 28 of, and sched 8 to, the Administration of Justice Act 1970 contain any reference to sums payable under s.40 of the 1996 Act; and that, accordingly, there was no power to enforce an order made under s.40.