Repayment of maintenance post-remarriage MCA 1973 s. 38
Under MCA 1973 s. 38, a payer who mistakenly continued spousal maintenance after the recipient remarried may apply to court to recover those payments.
Where— a periodical payments or secured periodical payments order in favour of a party to a marriage (hereafter in this section referred to as “ a payments order ”) has ceased to have effect by reason of the remarriage of , or formation of a civil partnership by, that party, and the person liable to make payments under the order or his or her personal representatives made payments in accordance with it in respect of a period after the date of the remarriage or formation of the civil partnership in the mistaken belief that the order was still subsisting, the person so liable or his or her personal representatives shall not be entitled to bring proceedings in respect of a cause of action arising out of the circumstances mentioned in paragraphs (a) and (b) above against the person entitled to payments under the order or her or his personal representatives, but may instead make an application against that person or her or his personal representatives under this section. On an application under this section the court to which the application is made may order the respondent to pay to the applicant a sum equal to the amount of the payments made in respect of the period mentioned in subsection (1)(b) above or, if it appears to the court that it would be unjust to make that order, it may either order the respondent to pay to the applicant such lesser sum as it thinks fit or dismiss the application. An application under this section may be made in proceedings in the High Court or the family court for leave to enforce, or the enforcement of, payment of arrears under the order in question, but when not made in such proceedings shall be made to the family court ; and accordingly references in this section to the court are references to the High Court or the family court , as the circumstances require. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . An order under this section for the payment of any sum may provide for the payment of that sum by instalments of such amount as may be specified in the order. An officer of the family court, and the collecting officer under an attachment of earnings order made to secure payments under a payments order, shall not be liable— in the case of an officer of the family court, for any act done by him , in pursuance of a payments order requiring payments to be made to the court or an officer of the court, after the date on which that order ceased to have effect by reason of the remarriage of , or formation of a civil partnership by, the person entitled to payments under it, and in the case of the collecting officer, for any act done by him after that date in accordance with any enactment or rule of court specifying how payments made to him in compliance with the attachment of earnings order are to be dealt with, if, but only if, the act was one which he would have been under a duty to do had the payments order not so ceased to have effect and the act was done before notice in writing of the fact that the person so entitled had remarried or formed a civil partnership was given to him by or on behalf of that person, the person liable to make payments under the payments order or the personal representatives of either of those persons. In this section “ collecting officer ”, in relation to an attachment of earnings order, means the officer of the High Court, or the officer of the family court, to whom a person makes payments in compliance with the order.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
When a court order requires one former spouse to pay periodical payments to the other, that obligation ends automatically if the receiving party remarries or enters into a civil partnership. If the paying party continues making payments after that date under the mistaken belief that the order is still active, the law prohibits bringing a standard court claim (such as a civil action for unjust enrichment).
Instead, the paying party or their personal representatives must file an application under this section in the High Court or the family court. The court has discretion to order repayment of the full amount mistakenly paid, order repayment of a smaller sum if full repayment would be unjust, or dismiss the application entirely. Repayment may also be ordered in instalments.
Court officers and attachment of earnings collecting officers are protected from liability for processing payments after the remarriage or civil partnership, provided they acted before receiving written notice of the change in status.
When it applies
- An ex-husband continues paying monthly spousal maintenance by direct debit without realizing his ex-wife remarried in secret.
- A former spouse pays secured periodical payments after their ex-partner formed a civil partnership, believing the support order remained in force.
- The executor of a deceased payer's estate discovers payments were remitted to a former spouse after that spouse had remarried.
- A court collecting officer processes attached earnings payments prior to receiving formal written notification that the recipient spouse entered a civil partnership.
What this section does not say
- Seeking repayment of child maintenance paid after a child reaches adulthood, which is governed under section 29 and section 33.
- Recovering overcollected spousal maintenance where no remarriage or civil partnership occurred, which is addressed under section 33.
- Requesting a variation or discharge of a subsisting financial order while both parties remain unmarried, which falls under section 31.
Related sections
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This page reproduces the text of MCA 1973 s. 38 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.