Sometimes obtaining a satisfactory maintenance order or succeeding in getting a valuable financial settlement following your divorce is only part of the story. Even when there is an apparently bottomless pot of marital assets, enforcing a financial order can be fraught with difficulty.
The court reports are littered with examples of cases where a spouse refuses to comply with the terms of financial remedy orders. One of the most extreme instances of such behaviour is the widely reported divorce of Russian oligarch Farkhad Akhmedov. Despite obtaining a £453 million high court settlement in 2016, Akhmedov’s ex-wife Tatiana spent years trying to secure the money owed to her. Her efforts to enforce the judgment included bringing applications in nine jurisdictions across the globe, including in the Isle of Man and Dubai. She was even forced to secure a High Court judgment in respect of certain assets against her son when the court found the son had helped his father protect the assets from his mother’s claims. Eventually the estranged couple reached a private agreement to settle all matters in 2021.
Ultimately a spouse who is not following a court order can be imprisoned for contempt. But if your ex-spouse is refusing to comply with a court order you should seek legal advice urgently. That’s because monies due under some orders, including maintenance orders, may sometimes be more difficult to recover if action is not taken swiftly and arrears are outstanding for more than 12 months.
There are various options available to you if you wish to enforce a court order against an uncooperative spouse. And they don’t all involve years of litigation like in the Akhmedov case we’ve mentioned. One method of enforcement – so-called Hadkinson orders – are particularly useful if the non-compliant spouse is at the same time pursuing any type of application against you in the case.
What is a Hadkinson Order?
The first thing to note is that Hadkinson Orders aren’t that common. This is largely because – as we’ll see – their effect is so severe. In essence, they stop the person against whom they are made from being heard in other court applications – usually, but not always, in the same case.
In the right circumstances however– when one spouse repeatedly ignores court orders following a financial settlement, for example – they can be a highly effective and cost effective way to ensure your ex-spouse meets his or her obligations.
Hadkinson Orders and Variation of Maintenance
One of the most common applications of the principles in Hadkinson is in cases where a spouse who has not paid a lump sum due under a court order wishes to change the financial order. For example, by applying to reduce or end maintenance payments that are payable under the order. They may wish to persuade the court that their ability to pay has reduced since the original order was made or something has happened that has fundamentally altered their financial position.
However, a spouse with the benefit of a lump sum that has not been paid can apply for a Hadkinson Order on the basis that the paying spouse is in contempt of court. If the application is successful, the non-paying spouse will be prevented from making an application to vary the maintenance payments – until any money due is paid.
Recipient spouses seeking a Hadkinsion Order in such cases should proceed with caution. In the original Hadkinson case, Lord Denning said:
‘it is a strong thing for a court to refuse to hear a party. it is only to be justified by grave considerations of public policy’
The remarks of Denning have meant that over the years the courts have refused to impose Hadkinson restrictions lightly. Take the case of Mubarak v Mubarak [2006] for example. There the Judge was asked by the husband to consider an application to vary periodical payments even though he was in contempt for failure to pay a lump sum. (He had also unilaterally reduced maintenance payments and then stopped paying them altogether.)
At the same time the wife had taken steps in court to enforce the lump sum order. Faced with the husband’s variation application she applied for a Hadkinson Order to prevent the husband’s from being able to participate in her enforcement proceedings.
The judge considered the following:
- Was the husband in contempt?
- Was there an impediment to the course of justice?
- Were there any other effective means of securing compliance with the court’s orders?
- Was the husband’s contempt wilful and continuing?
Having considered these issues the judge found that the wife had established that a Hadkinson Order was appropriate in principle. It was clear that the husband’s non-payment in breach of a maintenance order was a contempt of court regardless of his ability to pay.
However, the judge then had to decide what the proportionate action was in the circumstances of the case. He concluded that making a full Hadkinson order was ‘not safe, appropriate or proportionate’.
Instead he imposed strict case management directions, including orders which if not followed would result in penal sanctions against the husband.
The clear message to take from Mubarak is that – even when the conditions for a Hadkinson Order are present – there is no guarantee that one will be made.
In contrast Re Z (2024) shows that Hadkinson Orders will be made in appropriate circumstances. There the High Court considered an order was proportionate. The husband had not attended the hearing, he was not represented, and there was ‘serial non-compliance’. The court was also concerned with the need for the wife to have proper financial security if the husband decided to pursue an application to vary or discharge maintenance.
As the lawyer for the applicant wife argued:
‘if the husband wishes to apply to this court for any form of relief (including variation or discharge of any of the orders made), then he will need to make the relevant payment up front.’
Often the Hadkinson order will be enough to ensure that outstanding payments are made, and the otherwise convoluted and time-consuming enforcement process is circumvented.
Comment
Hadkinson Orders are a useful tool when one spouse refuses to follow a financial order. But they effectively prohibit someone from being heard in court, and this is a harsh penalty. Judges therefore don’t dispense Hadkinson orders without a great deal of consideration. The orders are often described as a remedy of last resort. This means that in addition to ascertaining whether the non-paying spouse is in contempt, judges will also expect a spouse seeking a Hadkinson Order to demonstrate that there is no other realistic or effective remedy – such as more conventional enforcement action.
Finally, Hadkinson Orders can only be made after a final financial remedy order is in place. Experienced family lawyers should pick up on the signs of potential non-compliance during proceedings. They should take steps at an early stage to minimise the possibility that a paying spouse will seek to avoid their financial obligations and try to avoid the any necessity for a Hadkinson application further down the line.