Migliaccio v Migliaccio (Rev 2)

On a judgment summons, the applicant must establish a case to answer, but need not prove every matter afresh where the order and default permit proper inferences. An evidential burden then falls on the respondent, while the ultimate burden remains on the applicant and the criminal standard applies to means and refusal or neglect to pay. A consent order may be enforceable by judgment summons where the relevant payment has effect as if made under Part 2 of the Matrimonial Causes Act 1973. A party cannot unilaterally reduce court-ordered maintenance because he believes variation may be justified.

The wife applied for a judgment summons concerning arrears of child periodical payments and an unpaid costs payment incorporated in a consent order. The husband, resident in Dubai, had been served by email but did not attend or file evidence in opposition. He asserted that his financial circumstances justified reduced payments and sought an adjournment.

The court considered the evidential requirements for committal under the Debtors Act 1869, the enforceability of the agreed costs payment, and the treatment of additional arrears, conduct money and application costs.

1. Judgment summons principles. Under section 5 of the Debtors Act 1869, the applicant must prove to the criminal standard that the debtor had or has had the means to pay and refused or neglected to do so. Following Karoonian v CMEC [2012] EWCA Civ 1379, proof of the order and non-payment will generally establish a case to answer through proper inferences. An evidential burden then falls on the respondent, but the ultimate burden remains on the applicant and the respondent cannot be compelled to give evidence.
2. The judge reaffirmed the corresponding principles stated in Bhura v Bhura [2013] 2 FLR 44. He expressly disagreed with the more restrictive, obiter approach suggested by McFarlane LJ in Prest v Prest [2016] 1 FLR 773, preferring the formulation in Karoonian v CMEC, which he considered definitive for enforcement under both the Debtors Act and the Child Support Act.
3. Costs payment. Paragraph 2A of Schedule 8 to the Administration of Justice Act 1970 covers orders for payments made, or having effect as if made, under Part 2 of the Matrimonial Causes Act 1973. The consent order treated the husband’s total agreed payment of £19,000 as a single settlement of arrears, maintenance and enforcement costs. Its internal allocation did not prevent the whole sum from having effect as if made under Part 2. The payment was therefore enforceable by judgment summons. This conclusion was supported by Graham v Graham [1992] 2 FLR 406 and Symmons v Symmons [1993] 1 FLR 317.
4. The wife established a case to answer by proving the order and default. Independently, the husband’s recent consent, disclosed assets and substantial income proved to the criminal standard that he had the means to pay and had wilfully neglected to do so. A fourteen-day prison sentence was imposed, suspended for 28 days upon payment of £13,813, comprising arrears, the agreed costs, the court fee, unused conduct money and the wife’s costs.

Not stated in the judgment.