The Malta Independent 19 April 2024, Friday
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Legal and procedural obstacles related to child support payments

Mark Said Sunday, 31 March 2024, 07:50 Last update: about 19 days ago

In March of last year, PL MP Amanda Spiteri Grech recommended the setting up of an authority regulating missed parental maintenance payments. When it comes down to the enforcement of child support and other maintenance payments, most women feel like their lives are on hold for years due to a lack of enforcement and lengthy bureaucratic processes.

 Although marriage can work in harmony even when only one spouse is in gainful employment, it may become dangerous when the bread-winning spouse attempts to manipulate the dependent spouse by capitalising on his financial superiority.

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Once maintenance is ordered by a court, it is not always immediately accessible. Once a court orders maintenance to be paid, problems, in particular of a procedural type, may still persist. If the person ordered to pay maintenance defaults on the order, the person entitled to receive the maintenance must enforce the order, and this is often complicated, costly, and emotionally tiring.

From a civil law point of view, the defaulting debtor may be ingenious and malicious enough to have all monies and/or property in his name transferred to other parties, subject to clandestine and underhand private agreements. Such debtors may even conceal their wealth by abusing the notorious and juridical concept of the corporate veil.

Finding themselves in these dire financial situations, desperate women creditors resort to criminal proceedings, but even here, things are not all that plain sailing and do not guarantee effective payment. While it is true that lately, our courts have been taking a harder stance with respect to offenders defaulting on maintenance payment orders by inflicting effective periods of imprisonment, imprisonment, ironically, will often guarantee that payment is not received.

The nature of the procedure, both in civil and criminal proceedings, is often extremely frustrating for the creditor, who, in the family court, will have to overcome a number of costly and time-consuming procedural stages, while in criminal proceedings, he is often subjected to yet another form of control by the accused, who can repeatedly dodge notification and avoid turning up in court, often to the point when it is eventually time-barred.

So how can things be improved and simplified? I have been extensively reading about the workings, experiences, and successes achieved by such governmental entities and agencies as the Child Maintenance Service (CMS) in the UK and the Child Support Agency (CSA) in Australia. In both instances, these bodies can take legal action on behalf of the creditor spouse against the spouse defaulting on maintenance payments and can apply for a liability order to recover arrears. A specific law gives authority to the CMS and the CSA to take legal action to get the child maintenance owed. There is also contemplated that, to guarantee a timely and regular settlement of the amount of maintenance and support due by way of a court order or on a contractual basis, the parent or spouse liable for such payment may ‘a priori’ be made to either deposit a starting lump sum amount, pledge a number of valuable items, or burden a part of his immovable property with a special hypothec or legal privilege.

Another piece of interesting legislation is the Maintenance Orders Enforcement Act in the Northwest Territories of Canada, which was enacted in 2018 in response to a growing local social scourge of defaulting maintenance payers, creating a crisis of endemic proportions. A maintenance enforcement administrator is responsible for receiving and enforcing any maintenance order issued by a court for the benefit of the person entitled to the enforcement of the order or of the child of that person. The Administrator has the executive power to commence and conduct proceedings and take steps for the enforcement of the order and shall not charge a fee for his or her services.

These types of legal and judicial mechanisms appear to have yielded a substantial measure of success, such that the incidence of defaulting parents or spouses has markedly decreased over the years.

In September 2021, an agreement was signed between the Legal Aid Agency Malta (LAM) and the Foundation for Social Welfare Services (FSWS), leading to more effective cooperation within the administration of applications submitted by foreign countries as regards maintenance as alimony for children and/or minors.

One could easily contemplate adding to the governmental agency, Legal Aid Malta, the role and responsibility of a central enforcing agency on behalf of any parent or spouse owed maintenance arrears in virtue of a court order or on a contractual basis. It could also have the lawful authority to institute criminal proceedings on their behalf. In this manner, their plight can be substantially eased since, indirectly, they will no longer have to face prohibitive legal costs and unnecessary procedural delays. Legal aid will be automatically incorporated into the system. If, today, legal aid is freely and immediately available for domestic violence victims, why should it not also be available for this ever-growing section of maintenance-dependent people in our society? Most of them, at some point, will have been directly or indirectly on the receiving end as domestic violence victims.

And if we really wish to alleviate the sufferings of these people, why not also consider exceptionally doing away with prescription for the respective criminal proceedings, or, at least, substantially increasing the prescriptive period from the current three months to make it more difficult for defaulting debtors to avoid or evade justice?

 

Dr Mark Said is a lawyer

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