I. Purpose

Surcharge on arrears of maintenance is to serve as a further deterrent against the blameworthy conduct of a maintenance payer who defaults without reasonable excuse.

II. Entitlement to Surcharge on Arrears of Maintenance

Where a maintenance payer, without reasonable excuse, repeatedly fails to pay the full amount or pay punctually in compliance with the maintenance order, the maintenance payee can apply to the court for an order requiring the maintenance payer to pay to him or her a surcharge in respect of the total arrears of maintenance accrued on or after 1 May 2005.

If the court makes a surcharge order against the maintenance payer, it shall specify in the order the amount of surcharge payable by the maintenance payer and the date of payment.

Whereas maintenance payees are entitled to interest on arrears automatically at Judgment Rate unless otherwise determined by the court, whether or not a maintenance payer is required to pay the maintenance payee a surcharge is at the discretion of the court.

III. Surcharge Ceiling

The court may order a maintenance payer to pay a surcharge not exceeding 100% of the total arrears of maintenance calculated from the date on which the arrears first accrued to the date of payment of the surcharge.

IV. 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 where necessary.

If the court grants leave to enforce arrears of maintenance which became due for more than 12 months, the surcharge on arrears of maintenance shall 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.

V. Application Procedures

The maintenance payee may apply to the court for a surcharge on maintenance arrears either -

1. in proceedings instituted for enforcing maintenance order, i.e.,
   • attachment of income order
   • judgment summons
   • garnishee proceedings
   • charging order ; or
2. under the specific summons procedure in the Ordinance (please see below for details)

VI. The Summons Procedures specified in Legislation

(a) Submission of Summons and Supporting Affidavit to the Court

The maintenance payee should first complete and submit to the court a summons applying for a surcharge on arrears of maintenance with a supporting affidavit. The supporting affidavit should state -

1. the name of the maintenance payee and the address for service of the documents relating to the application for a surcharge;
2. the name and the address for service of documents or last known address of the maintenance payer;
3. the particulars of the maintenance order;
4. the total arrears of maintenance due and unpaid and the date on which the arrears first accrued;
5. a request for an order requiring the maintenance payer to pay surcharge at a rate to be decided by the court;
6. a request for fixing a date, time and place for the hearing of the application; and
7. a request for an order requiring the maintenance payer to pay to the maintenance payee the surcharge claimed if the maintenance payer does not appear at the hearing.

Click here for a specimen format of the summons (with annotations and suggested wordings) and of the affidavit respectively for reference.

(b) Service of Summons and Supporting Documents

On receiving the summons and affidavit, the court shall fix a date, time and place for hearing the application. The maintenance payee shall then serve the following documents on the maintenance payer -

1. a sealed copy of the summons;
   
2. a copy of the affidavit; and
3. a notice of the hearing.

The maintenance payee should serve the above-mentioned documents, i.e. the summons, affidavit and notice on the maintenance payer either -

1. in person;
2. by post to by leaving the documents -
   • with the solicitor representing the maintenance payer; or
   • if the payer is unrepresented, at the address for service given by him or the last known address of the maintenance payer; or
3. in any other manner as the court directs.

What will happen if the maintenance payer fails to appear at the hearing of the surcharge application?

	Is the court satisfied that the documents have been duly served on the maintenance payer?	Outcome
Scenario A	Yes	The court may proceed to hear the application and may make an order requiring the maintenance payer to pay a surcharge to the maintenance payee.
Scenario B	No	The court may adjourn the hearing to a date, time and place as it thinks fit.

Adjourned Hearing

If the court adjourns a hearing, the maintenance payee shall serve a notice of the adjourned hearing on the maintenance payer.

If the maintenance payer fails to appear at the adjourned hearing, the court may proceed to hear the application and may make an order requiring the maintenance payer to pay a surcharge to the maintenance payee.

VII. Enforcement of the Surcharge Order

If a maintenance payer fails to pay the surcharge ordered by the court, the maintenance payee may seek enforcement of the surcharge order through the usual enforcement proceedings, e.g. judgment summons. The maintenance payee may also seek recovery of the sum as if the latter is a civil debt due to her or him in the District Court.

VIII. Request for Varying or Setting Aside the Surcharge Order by the Payer

A maintenance payer, within a reasonable time after having knowledge of the order, may apply by summons to vary or set aside the order.

If the court is satisfied that there is reasonable excuse for the maintenance payer's failure to -

1. appear at the hearing; and
2. pay the full amount or pay punctually in compliance with the maintenance order.

the court may vary or set aside the order on such terms as it thinks fit.

IX. Appeal

A maintenance payer who is aggrieved by an order to pay a surcharge may appeal to the Court of Appeal against the order under section 63 of the District Court Ordinance (Cap. 336).