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INTEREST ON ARREARS OF MAINTENANCE
I. Purpose
Interest on maintenance arrears is to compensate maintenance
payees for the loss of interest on their savings, or
for the interest payable by them in respect of loans they
have to obtain due to the maintenance payer's default
or delay in making maintenance payment(s).
II. When will a Maintenance Payee
be entitled to Interest on Arrears of Maintenance?
Under the Ordinance, where a maintenance payer does not
pay the FULL amount or does not pay PUNCTUALLY according
to a maintenance order, a maintenance payee is entitled
to interest automatically in respect of the maintenance
arrears accrued on or after 1 May 2005.
III. Simple Interest
Arrears in respect of a maintenance order is to carry
simple interest
| (a)
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at
the rate the court orders; or |
| (b)
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in
the absence of an order, at the prevailing Judgment
Rate decided by the Chief Justice.from
time to time |
on
the total amount of the arrears of maintenance, or on the
part that for the time being remains unpaid, from the
date on which the payment is due as specified by the maintenance
order until payment.
As the arrears of maintenance are to carry simple interest,
interest accrued and yet to be discharged will NOT
attract interest.
Judgment Rate may vary from time to time. Please click
here for the Judgment
Rate of respective periods.
IV. Priority of Calls on Payment
Where a maintenance payee institutes enforcement proceedings
against the payer, apart from interest and the regular
payments under a maintenance order, the maintenance payer
may also be required to make the following payments by
order of court -
| (a)
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surcharge
on arrears of maintenance on application from the payee; |
| (b)
|
costs
of proceedings; and |
| (c)
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repayment
of arrears of maintenance accrued in the period concerned.
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After interest on arrears of maintenance has accrued, a payment by the maintenance payer is deemed to be
made in the following order in or towards the discharge
of -
|
| (a)
|
interest
accrued; |
| (b)
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surcharge;
|
| (c)
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the
costs ordered by the court to be paid under the proceedings
instituted for enforcing the maintenance order; |
| (d)
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any
sums from time to time falling due under the maintenance
order, with the most recent arrears being discharged
first; and |
| (e)
|
if
the court makes an order in any proceedings instituted
for enforcing the maintenance order, the amount of
the maintenance in arrears, whether in one amount
or by instalments, payable by the maintenance payer
under the order. |
| |
NOTE:
Only outstanding payment(s) in (d)
above will attract interest. |
V. Leave of the Court to Enforce
Arrears of Maintenance that are Due for more than 12 months
Under Section 12 of the Matrimonial Proceedings and Property
Ordinance (Cap. 192), a person shall not be entitled to
enforce through the court the payment of any arrears due
under a maintenance order without the leave of the court
if those arrears became due more than 12 months before
the enforcement proceedings are begun. A maintenance payee
may apply to the court for grant of leave under the said
section in accordance with the relevant court rules if
necessary.
If the court grants leave to enforce arrears of maintenance
which became due for more than 12 months, the interest
on arrears of maintenance may be calculated from the date
specified by the court as being the date on which the
payee is entitled to enforce the payment of the arrears.
VI. Can a Maintenance Payer
Refuse to Pay Interest?
If a maintenance payer considers that he has reasonable
ground(s) not to pay the interest on arrears of maintenance,
he may, within a reasonable time after having knowledge
of the requirement to pay, apply by summons to the court
not to pay the interest and set out his ground(s) in the
application.
In deciding whether to require the maintenance payer to
pay interest, and if so, the amount of interest, the court
shall take into account all the circumstances of the case.
The factors to be considered include, among other things,
the following -
| (a)
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whether
the maintenance payer has a reasonable excuse for
his failure to comply with the maintenance order;
|
| (b)
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whether
the maintenance payer has evaded service of court
documents; |
| (c)
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the
maintenance payer's past record and conduct in connection
with the making of maintenance payments to the maintenance
payee under the maintenance order or an undertaking
in any proceedings; |
| (d)
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whether
the maintenance payer has given the payee a reasonable
explanation for his failure to comply with the maintenance
order; and |
| (e)
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the
maintenance payer's ability to pay. |
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VII.
Appeal
A maintenance payer who is aggrieved by a requirement
by the court to pay interest on arrears of maintenance may
appeal to the Court of Appeal against the decision under
section 63 of District Court Ordinance (Cap. 336).
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