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 divorce of Russian oligarch Farkhad Akhmedov demonstrates this point clearly. Despite obtaining a £453 million high court settlement in 2016, Akhmedov’s ex wife Tatiana is yet to successfully enforce the judgment.
Ultimately of course 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. 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.
In essence Hadkinson orders stop the person against whom they are made from being heard by the court in another application in the same case. So take the example of a spouse who is refusing to honour an obligation to make periodical payments for maintenance under a court order. He or she may wish to apply to the court to reduce the maintenance payments – perhaps arguing that their ability to pay has reduced since the original order was made. But because non-payment means he or she is in contempt of court it’s open to the other party to apply for a Hadkinson order. If the application is successful the non-paying spouse will be prevented from making an application to vary the maintenance payments.
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.
In the original Hadkinson case Lord Denning said:
it is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy
Prohibiting someone from being heard in court is indeed a harsh penalty so judges don’t dispense Hadkinson orders without a great deal of consideration. This means that in addition to ascertaining whether the non-paying spouse is in contempt, judges will look at a range of other factors, including whether or not the contempt is an impediment to the course of justice and whether or not there is an alternative way of ensuring compliance.
That said, the 2019 case of HR v DS appeared to extend the application of Hadkinson orders so that they may be used more frequently in future.
Historically Hadkinson orders applied only to stop someone making an application in the same proceedings. But in HR v DS the Hadkinson order was for the first time used in a separate but, in the judge’s words, ‘intrinsically linked’ case. (The Hadkinson order was obtained to prevent a husband pursuing an appeal in a case that related to occupation of the family home until he paid maintenance that was outstanding under a consent order in a separate financial remedy case).