Judgment Summons In Hong Kong Divorce Cases

Enforcement, Penalties, and the Real Risk of Imprisonment

Many divorce settlements involve one time payments or ongoing financial commitments, such as monthly maintenance, school fees, or staged lump-sum payments. These arrangements often work well at the outset, but real life has a habit of intervening.

When payments fall behind, this will have a knock-on effect on the financially dependent party. Some assume the court will be sympathetic. Others assume enforcement is slow and cost inefficient. Both assumptions can be costly.

One of the strongest enforcement tools available to the Family Court is the Judgment Summons. This article explains what it is, how it operates in Hong Kong today, and what can happen if court-ordered payments are ignored — as well as what parties should do early if they genuinely cannot pay.

This article forms part of a broader series on the enforcement of financial orders in Hong Kong divorce proceedings.

1. What Is a Judgment Summons?

A judgment summons is a court procedure used to enforce a financial obligation ordered by the court.

In divorce cases, this most commonly involves:

• spousal maintenance
• child maintenance
• school fees
• lump-sum payments

It is important to be clear from the outset:

A judgment summons is not simply the court asking why payment has not been made. In serious cases, it can lead to penal consequences, including loss of liberty.

In the past, judgment summons proceedings were sometimes described as a single "show cause" hearing. That description is no longer accurate.

2. How Judgment Summons Work in Hong Kong Today

Two Separate Procedures — Not a Step-by-Step Process

Under current law, the term "judgment summons" is used as a shorthand for two distinct court procedures, each serving a different purpose.

(a) Examination Summons — Investigating Financial Means

An examination summons allows the creditor to obtain information about the payer's financial position. It may be used to:

• examine income, assets, liabilities, and spending patterns
• require disclosure of bank statements and financial records
• assess whether non-payment is due to genuine difficulty or deliberate choice

The payer may be questioned under oath and must give full and honest answers.

An examination summons does not, by itself, result in imprisonment.

However, incomplete or evasive answers may lead the court to draw adverse conclusions, which can later become critical if committal proceedings are pursued.

(b) Committal Summons — Penal Proceedings

A committal summons is fundamentally different.

It is a penal process in which the court is asked to punish a party for deliberately failing to comply with a court order.

To succeed, the applicant must beyond reasonable doubt that:

• the payer has or has had the means to comply with the order; and
• the failure to pay amounts to wilful refusal or neglect, rather than genuine inability

Clarifying some common conceptions:

• an examination summons is not required before committal; and
• The applying party can choose which route to take. If sufficient evidence already exists, the applying party may proceed directly to committal

3. What Penalties Can the Court Impose?

If the court is satisfied that a party has deliberately failed to comply with a financial order, it has a range of enforcement powers.

(a) Fine

The court may impose a financial penalty, either on its own or together with other enforcement orders.

(b) Imprisonment

This is the most serious sanction.

Imprisonment is not mandatory and is considered as a last resort, however this is becoming more common.

Custodial sentences are typically considered where:

• there is clear evidence of ability to pay
• funds were prioritised elsewhere instead
• there is a repeated pattern of delay, avoidance, or defiance

(c) Suspended Sentence

In many cases, the court may impose a prison sentence but suspend it on strict conditions — for example:

• immediate payment of arrears
• strict compliance with a repayment schedule

A suspended sentence is not a warning. It is usually the court's final opportunity for compliance. If the conditions are breached, imprisonment may follow swiftly.

(d) Surcharge on Arrears

In maintenance cases, the court may also impose a surcharge on outstanding arrears.

This is an additional financial penalty for repeated non-payment without reasonable excuse.

4. "I Genuinely Can't Pay" — What Should Be Done?

Financial hardship is real. The Family Court recognises that circumstances can change.

But there is a right way and a wrong way to deal with that reality.

(a) Apply for a Variation — Early and Properly

If a party can no longer afford to comply with a financial order, the proper response is to apply for a variation. In appropriate cases, the court may also be asked to suspend payments while the variation is being considered.

A variation application must show:

• a material change in circumstances
• why the existing order has become unworkable

What the court will not accept is stopping payment unilaterally and hoping the issue resolves itself.

(b) Does Applying for a Variation Automatically Stop Judgment Summons Application?

No, it does not. While courts have indicated that variation applications are often dealt with before enforcement, this is not guaranteed.

If the court finds that:

• the payer could have paid but chose not to; or
• the variation application would not explain past non-payment

then enforcement — including committal — may still proceed.

A late variation application is rarely a shield against serious enforcement action.

5. Enforcing Maintenance Arrears Over 12 Months

If maintenance arrears are more than 12 months old, the court's permission is required before enforcement.

Delay alone does not prevent enforcement. The court will consider:

• whether there were informal negotiations or tolerance
• whether the payer relied on that tolerance
• whether enforcement would be unfair in the circumstances

Importantly, patience or accommodation does not amount to forfeiting the right to enforce later.

6. Practical Takeaways

If You Are Enforcing a Court Order

Consider:

• whether permission is required for older arrears
• whether fact-finding (examination) is needed or committal is appropriate
• whether a surcharge should be sought

A clear enforcement strategy can materially affect outcomes.

If You Are Struggling to Pay

Be proactive and realistic:

• explain the default clearly. Do not leave the court guessing.
• inability must be proven, not merely asserted
• apply for variation early
• avoid tactical delay. It often backfires.

Waiting too long usually worsens the position.

Final Thoughts

If you are struggling to comply with a financial order, do not wait until enforcement proceedings are issued. Early advice and a timely variation application can prevent matters from escalating.

If you are owed money under a court order, do not assume enforcement is ineffective or slow. The Family Court has robust powers, and in appropriate cases it will use them.

Judgment summons proceedings are not procedural formalities. They carry real consequences, including imprisonment, and should be taken seriously by both sides.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.