Certain debts are not provable by virtue of being unenforceable debts.  Guidance relating to the main categories of these is in this Part, as follows: 

• Gambling debts incurred prior to 1 September 2007 (see paragraph 40.94)
• Statute-barred debts (see paragraph 40.95)
• Debts owed by minors (see paragraph 40.96)

40.81 Debts that are not provable

As outlined in paragraph 40.9, the legislation provides a wide definition of debts that are considered provable.  It has been held that the notion that all possible liabilities within reason should be provable helps achieve equal justice to all creditors and potential creditors in any insolvency, and, in bankruptcy proceedings, helps ensure that the former bankrupt can in due course start afresh [note 1]. 

There are, however, exceptions to this general principle, as follows: 

• In bankruptcy, any fine imposed for an offence [note 2] (see paragraph 40.84), 
• In bankruptcy, any obligation (other than an obligation to a lump sum or to pay costs) arising under an order made in the family proceedings or any obligation arising under a maintenance assessment under the Child Support Act 1991[note 3] (see paragraphs 40.85 to 40.88), 
• In administration, winding-up or bankruptcy, any obligation arising under a confiscation order made in relation to criminal proceedings [note 4] [note 5] [note 6] [note 7] [note 8] (see paragraph 40.90),  
• In administration, winding-up or bankruptcy, any obligation arising from a payment made out of the social fund [note 9] by way of crisis loan or budgeting loan [note 10] (see paragraph 40.91),

40.82 Creditor pursuing a non-provable debt

Any claim against a bankrupt which is a non-provable debt in the bankruptcy proceedings (see paragraph 40.81) may be pursued by the creditor obtaining judgment at any time between the bankruptcy order and the bankrupt’s discharge, but only with the sanction of the court [note 11].

The official receiver, if satisfied that the debt is a non-provable debt, should inform the court in which the proceedings are taking place of the bankruptcy order and seek to ensure that judgment is given only in respect of the non-provable debt.  Reference should also be made to Chapter 9, paragraph 9.65 regarding goods that cannot be seized if execution is levied.

Except where there are arrears of maintenance payments due to the bankrupt’s former spouse (see paragraph 40.86), the pursuit of a non-provable debt is most likely to occur after discharge when the permission of the court is not required.

40.83 Bankruptcy petition founded on a non-provable debt

The definition of bankruptcy debt (see paragraph 40.8) makes no distinction between a provable and a non-provable debt.  The court therefore has jurisdiction to make an order on a petition based on a non-provable debt, but the court’s discretion has been restricted in that it will only grant a bankruptcy order on the basis of a non-provable debt in exceptional circumstances [note 12] [note 13].

40.84 Fines as non-provable debts

Any fine (defined as ‘any pecuniary penalty or pecuniary forfeiture or pecuniary compensation payable under a conviction) is not a provable debt [note 14] [note 15].

Such a definition would not include penalty charges imposed by local authorities or the police (see paragraphs 40.36 to 40.41).

See paragraphs 40.36 to 40.41 regarding the different types of penalty charges.

40.85 Debts due under family and domestic proceedings

As outlined at paragraph 40.81, certain debts in respect of family and domestic proceedings are not provable (see paragraph 40.86).  The definition of such proceedings is broad and can be taken to include any court proceedings involving the settling of family business, such as the setting of maintenance orders [note 16] [note 17] [note 18].

The court may make an order for maintenance. Maintenance awarded to a civil partner is for their own benefit while maintenance awarded to an unmarried parent is for the benefit of their child. However, maintenance can be awarded to a spouse for their own benefit and/or for the benefit of a child who is under the age of 18, or 23 if the child is in full-time education.

40.86 Debts due in respect of arrears of maintenance non-provable

Arrears of amounts due under a maintenance order of the court (see paragraph 40.85) would not be a provable debt [note 19], and would not be released on discharge (see paragraph 40.182).

40.87 Debts due in respect of an obligation to make a lump sum payment or to pay costs in respect of family proceedings is provable

An obligation to make a lump sum payment or pay costs in respect of family proceedings is, however, a provable debt [note 20], but is not released on discharge (see paragraph 40.182).

40.88 Debts due in respect of an obligation to the Child Support Agency

The Child Support Agency (CSA) has the power to make sure that adults who live apart from their children contribute financially to their upkeep by paying maintenance where the parties concerned are unable or unwilling to reach an agreement on maintenance.

Any obligation under a maintenance assessment made under the legislation [note 21] is not a provable debt, and would not be released on discharge (see paragraph 40.182).

40.89 EU child maintenance arrears not a provable debt; lump sum debts provable but not released on discharge

As explained in paragraph 43.0.24, the general principle under the EC Regulation is that the law of the State of the opening of the proceedings is the law that is used to decide matters.  There are exceptions to this general principle, but none of them cover debts made under matrimonial proceedings.

As outlined in paragraphs 40.85 to 40.86, any obligation (other than an obligation to pay a lump sum or to pay costs) arising under an order made in family proceedings is not a provable debt.  The Act defines "family proceedings" as having the same meaning as that given in the Magistrates Court Act 1980 [note 22].  The Magistrates Court Act 1980, as amended, refer to European Directives on the jurisdiction, and the recognition and enforcement, of judgements in civil and commercial matrimonial matters and matters of parental responsibility [note 23].

This being the case, it is likely that an order of an EU court in matrimonial proceedings would be recognised by the English court and fall within the definition of "family proceedings" in the Rules.

In summary therefore, arrears of child maintenance under an EU order are not a provable debt in an English bankruptcy [note 24].  A debt following an EU order for a lump sum maintenance payment is a provable debt, but is not released on discharge (see paragraph 40.182).

40.90 Confiscation orders

The courts have the power to make a confiscation order against a person who has been shown to have benefitted from the proceeds of crime, and similar (see Chapter 9A).  Any liability in respect of such an order under the following legislation is not a provable debt [note 25]: 

• Proceeds of Crime Act 2002 [note 26]
• Drug Trafficking Offences Act 1986 [note 27]
• Criminal Justice (Scotland) Act 1987 [note 28]
• Criminal Justice Act 1988 [note 29]

Such debts are also not released on discharge (see paragraph 40.178).

40.91 Social Fund loans

The Social Fund provides a pot of money that can be used to provide interest free loans to people in receipt of social security benefits to assist them in dealing with unexpected emergency expenses.  There were two categories of loans, budgeting loans to help pay for essentials such as rent, furniture or clothes and crisis loans to assist with the financial consequences of disaster such as a house fire, however crisis loans were discontinued from 1 April 2013.

An obligation in respect of a budgeting loan or a crisis loan from the Social Fund is not a provable debt where the bankruptcy petition was presented on or after 19 March 2012 [note 30] [note 31].  Such a liability will also not be released on discharge (see paragraph 40.183).

40.92 Student loans as non provable debts

Student loans are granted to eligible students to assist with the costs of higher education under a number of pieces of legislation.

The position of student loans as provable debts has changed over the years as the legislation has developed.  In summary, the position is as follows [note 32]:

40.93 Postponed debts (amended May 2014)