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ENFORCEMENT/ANCILLARY RELIEF: Mubarak v Mubarak [2006] EWHC 1260 (Fam)

Date:9 MAY 2006

(Family Division; Bodey J; 9 May 2006) [2006] FLR (forthcoming)

Non-payment in breach of a matrimonial order to pay money was in itself a contempt of court. There was no requirement that the non-payment must be shown to have been culpable, ie that the non-payer had the means to pay. Questions of culpability came into play as regarded the court's exercise of its discretion as to whether and how to act on the contempt so established, at which stage all the circumstances were considered. The standard of proof required to be met regarding non-compliance with a money order depended quite simply on the relief being sought. Where the liberty of the non-payer was at stake, ie on a judgment summons, then the standard would obviously be the criminal one. Where the issue arose, eg on a Hadkinson [1952] P 285 application, in civil proceedings and there was no question of the liberty of the subject being imperilled, the standard was the civil standard. On consideration of a Hadkinson application Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 was engaged, and all the usual considerations about a fair hearing needed to be addressed. On any standard this husband could have paid the sums which he had failed to pay in breach of court orders. It would be wrong to debar the husband from participating in the wife's applications for changes to a trust structure and for release from certain undertakings, however this was an exceptional and unusual case and the husband could and should be placed on certain terms: (i) that the husband write to the trustees informing them that he was bound by the court orders already made, and those which might yet be made in the proceedings, and wished the trustees to assist him in meeting his obligations under those orders; (ii) that for each £1 he paid his own solicitors he placed £1 into a joint account in the names of the parties' respective solicitors, to be held to the order of the court but to be paid to the wife's solicitors at the end of the hearing unless the court positively ruled otherwise in its overall discretion; (iii) the husband's solicitors to confirm compliance with these terms. These terms were not intended to punish or penalise the husband, but to try to create a fair hearing for both parties and/or facilitating the enforcement of the court's orders.