Court orders release of man jailed in maintenance case

Thu, Dec 29, 2011, 00:00

A HUSBAND jailed for contempt of court for failing to pay his wife’s maintenance has been freed by the High Court because he had been given no notice that failure to comply might lead to his imprisonment.

Mr Justice Gerard Hogan said the case by the husband for his release had raised important issues concerning the jurisdiction of the District Court to sentence a defaulting maintenance debtor to prison for contempt of court.

He said the man, identified as DH, had been married to a foreign national since 1993 and the relationship had broken down in 2008.

The District Court had made an order requiring DH to pay his wife maintenance of €1,000 a month.

Mr Justice Hogan, in a reserved judgment following the earlier release of the husband, said this had subsequently been varied downwards to the sum of €600 a month and DH had paid maintenance until February 2011.

He said DH subsequently maintained that business had suffered as a result of the recession and asked to have his maintenance payments further reduced.

An application by the husband for a further cut in maintenance had been listed at Bray District Court and adjourned on a number of occasions.

In the meantime his wife issued a fresh District Court summons in September demanding €3,600 in maintenance arrears.

Mr Justice Hogan said the summons gave no warning to the husband that he might be held liable in contempt or imprisoned if he failed to pay the arrears.

He had also not been given an opportunity to discharge the arrears.

He was convicted of contempt and jailed for seven days.

This manifest non-compliance with the enforcement of Court Orders (Amendment) Act of 2009, which introduced important new procedural safeguards, had meant the district judge had no jurisdiction to impose a custodial sentence.

The courts had ruled that a prison term for contempt should generally be the option of last resort, save where the behaviour of the offender was so contumelious and outrageous as to call for immediate sanctions.

In the case of DH, imprisonment was clearly a manifest error by the District Court judge in the exercise of his statutory contempt jurisdiction, the judge said.

Mr Justice Hogan said it had been clearly incumbent on the judge to have warned the husband of the potential consequences of his failure to comply with the court’s maintenance order and to have given him a fair opportunity to do so.