Getting a satisfactory financial settlement – whether through the courts or by reaching an agreement with your ex-spouse – is not always the end of matters. Occasionally we need to take action to enforce the settlement because the paying spouse refuses to cooperate. Applying for a Hadkinson Order is one way to do this.

Their use is limited so it’s important to think carefully about whether a Hadkinson Order is appropriate in your case. Here we discuss a 2023 case which explains when the Orders are appropriate. We also mention some of the other ways financial orders on divorce can be enforced.

Hadkinson Orders Explained

The original Hadkinson case from 1952 was an application by the father of a child who had been removed to Australia by the child’s mother following a divorce. Removal amounted to a breach of a court order, and the court ordered the mother to return the child. She appealed this order. The father argued she was not entitled to appeal because she was in contempt of court. Only when she returned to the UK with the child and ‘cleansed’ her contempt could she have her appeal heard. The Court of Appeal agreed with the husband and refused to hear the mother’s appeal.

What Conditions Must Be Met For A Hadkinson Order?

Today we usually see Hadkinson applications when a spouse who has not complied with spousal maintenance order asks the court to reduce the payments. The Hadkinson Order would operate to force the paying spouse to meet his or her obligations under the original order before the application to vary the maintenance can be heard.

In a 2018 case the judge described Hadkinson Orders as ‘exceptional’ before summarising the key elements that need to exist for an order to be made. These are:

  • The respondent is in contempt
  • The contempt is deliberate and continuing
  • As a result, there is an impediment to the course of justice
  • There is no other realistic and effective remedy
  • The order is proportionate to the problem and goes no further than necessary to remedy it

Establishing these factors is a high hurdle to cross for anyone applying for a Hadkinson Order. So in practice successful applications are unusual.

Limits to Hadkinson: Williams (2023)

The limitations of Hadkinson Orders were highlighted in the 2023 case of Williams case. Here the husband had refused point blank to take any part in financial proceedings. The wife, with very limited personal financial means believed the husband’s inaction was frustrating her ability to get a fair financial settlement. She applied for a Hadkinson Order to prevent the husband ‘from playing any part in this litigation unless he complies with the orders that have already been made against him’.

The judge made clear his long-held view that Hadkinson applications have no place in financial remedy proceedings prior to a final order being obtained. He explained that in financial remedy cases like this one the court’s job was to apply the Section 25 factors to the facts of the case to reach a fair financial settlement. To do so the court must engage in an investigatory process which is impossible if a party is forbidden from playing any part in the proceedings.

As an aside, despite the dismissal of her Hadkinson application the wife did succeed in obtaining highly favourable costs orders, approval of monies to instruct foreign lawyers and a considerable amount towards payment of disbursements such as payment to commercial valuers of the husband’s business.

What Other Ways Can I Enforce A Financial Order?

We have seen how Hadkinson Orders should only be applied for in very specific circumstances. When an ex-spouse does not comply with a financial or other order following divorce, various enforcement proceedings are available to you.

In our experience it is always preferable to try and resolve payment issues out of court, either through direct contact with your former spouse or with the help of your solicitor. If this fails, it might be necessary to go back to court where options available include placing a charge (similar to a mortgage) over any property your ex owns. Ultimately this could force the sale of the property if your ex does not pay the monies due.

You may also be able to secure payment of an outstanding sum from any lump sum your ex has.

If a periodical payment such as maintenance is outstanding, it’s possible to obtain payment direct form your ex’s employers with an attachment of earnings order.

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