[The judicially approved judgment and accompanying headnote has now published in Family Law Reports  1 FLR 773
Financial remedies – Breach of order – Application forjudgment summons – Standard of proof – Whether the 4-week prison sentence wasunacceptableThe full judgment is attached below
The husband's appealfrom a 4-week prison sentence for breach of a financial order was dismissed.
When the husband andwife divorced after 15 years of marriage the wife was awarded a lump sum by wayof property transfer of £17.5m and pending discharge of the lump sum thehusband was to make periodical payments of 2% pa on the amount outstanding.
The wife allegednon-payment of arrears and was granted a judgment summons under s 5 of theDebtors Act 1869. A penalty of 4 weeks’ imprisonment was imposed but wassuspended providing that the husband paid the arrears within 3 months. Thehusband appealed.
Lord Justice McFarlaneadvised treating three key authorities referred to with caution: Zuk v Zuk
 EWCA Civ 1871; Bhura v Bhura
 EWHC 3633 (Fam);and Mohan v Mohan
 EWCA Civ 586.Those authorities suggested that in the criminal process of hearing a judgmentsummons it was sufficient to rely upon findings as to wealth made on the civilstandard of proof in the original proceedings and that those findings coupledwith proof of non-payment was sufficient to establish the burden on therespondent.
In such cases wherethe respondent might serve a term of imprisonment certain requirements had to besatisfied: (a) the fact that the respondent had, since the date of the order orjudgment, the means to pay the sum due must be proved to the criminal standardof proof; (b) the fact that the respondent had refused or neglected, to pay thesum due, must also be proved to the criminal standard; (c) the burden of proofwas at all times on the applicant; and (d) the respondent could not becompelled to give evidence.
The husband’s appeal was dismissed. The decision torefuse an adjournment to further investigate the husband’s ill health was acase management decision which had been approached properly and did not denyhim a fair trial. There was no risk that the judge would take improper accountof previous findings because he had conducted the fact-finding process of thehusband’s findings. In fact the judge did not take account of those findingsand did not apply the incorrect standard of proof. The judgment drew a cleardistinction between the previous findings and those made in the judgmentsummons proceedings. Furthermore, there was no evidence that the wife hadacquiesced or encouraged the husband to pay other outgoings rather than tofulfil his maintenance obligations to her. It had been unacceptable for thehusband to persistently fail to comply with the order. The 4-week prisonsentence was not unacceptable given the outstanding arrears amounted to £320,000.
Case No: B6/2014/2752