Arif v Anwar & Ors

Under section 32 of the Matrimonial Causes Act 1973, leave to enforce maintenance arrears older than twelve months is discretionary. The applicant bears a persuasive burden but need not establish special circumstances. Relevant considerations include the parties’ continuing financial realities, the reasons for delay and whether enforcement could reasonably have been pursued earlier.

Hadkinson relief may be granted where contempt impedes the course of justice, no other effective means of securing compliance exists, and the contempt is wilful. Any condition must be proportionate and must not effectively prevent a genuine application to vary or remit arrears.

The wife sought enforcement of arrears under a Maintenance Pending Suit order made in 2011. She sought leave to enforce arrears accruing more than twelve months before her enforcement application. She also sought enforcement of current maintenance and legal-cost obligations.

The husband applied out of time to vary the order and remit arrears. He resisted enforcement and sought to continue pursuing his applications despite substantial non-compliance. The court considered the effect of his bankruptcy, his earning capacity, family support, available funds and the need to preserve the wife’s legal representation.

The central issues were whether leave should be granted under section 32 of the Matrimonial Causes Act 1973, whether enforcement measures should be made, and whether the husband’s continued conduct of his applications should be made conditional on payment and compliance.

1. The husband’s late application to remit arrears was adjourned. Striking it out would have wasted resources, but the delay should have a procedural consequence because oral evidence would be required and could not conveniently be dealt with in the allocated enforcement hearing.
2. Section 32 of the Matrimonial Causes Act 1973 imposes no requirement for special circumstances before leave is granted to enforce arrears older than twelve months. The wife nevertheless bore a persuasive burden to give reasons for relief. Leave was granted because the husband’s bankruptcy had not materially altered the parties’ respective circumstances, his earning capacity remained significant, family assistance had not been shown to have ended, and the wife’s delay was substantially explained by her financial and personal circumstances and lack of funds to enforce.
3. The husband was, in substance, an employee of the company retaining him as a consultant. An attachment of earnings order could therefore be made against his earnings and pension. The court declined to make a further order from his current income because payment of the child’s school fees was a primary obligation and the remaining income was limited.
4. Hadkinson relief is available for contempt arising from non-payment of a Maintenance Pending Suit order. Applying the conventional approach described in Mubarak, the contempt impeded the course of justice by defeating interim provision and undermining the wife’s legal representation. Other effective means of securing compliance were unavailable because the husband’s full resources and efforts to obtain remunerative work had not been disclosed. The non-payment was wilful.
5. Relief was appropriate but had to be proportionate. The husband was prevented from pursuing his application to vary or remit arrears unless he paid £25,000 towards the arrears and complied with the undertaking to pay the child’s school fees. No restriction was imposed on his participation in the part-heard preliminary issues. He was ordered to pay the wife’s assessed costs of £10,000, with interest from judgment and payment by 16 May 2014.