Mubarak v Mubarik [2006] EWHC 1260 (Fam) (09 May 2006)

Mubarak v Mubarik [2006] EWHC 1260 (Fam) (09 May 2006)

The husband's non-payment of the lump sum order constitutes contempt of court regardless of culpability; however, the court's discretion as to whether and how to act on the contempt must consider all circumstances, with particular weight on whether the husband could have paid. The standard of proof for wilful non-payment in this context is the civil standard. The wife’s Hadkinson application succeeds in principle, but the husband will not be debarred from defending the substantive applications; instead, he will be permitted to participate only on specified terms designed to ensure fairness and facilitate enforcement.

Citation
[2006] EWHC 1260 (Fam)
Parties
Applicant/wife: Aaliya Mubarak; Respondent/husband: Iqbal Mubarik
Jurisdiction
England and Wales
Judgment Date
09 May 2006
Procedural Posture
Family/ancillary Relief/enforcement / Preliminary Application for Hadkinson Order Prior to Substantive Hearing
Outcome
Application granted in part; Hadkinson order made imposing terms on husband's participation in substantive hearing.
Legal Topics
Enforcement of Financial Orders, Contempt of Court, Hadkinson Orders, Variation of Trusts, Post Nuptial Settlements, Standard of Proof in Contempt Applications, Article 6 ECHR (right to Fair Trial)
Family Law Trusts and Equity Civil Procedure Enforcement of Financial Orders Contempt of Court Hadkinson Orders Variation of Trusts Post Nuptial Settlements +2 more

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Parties

Aaliya Mubarak

Applicant/wife

Iqbal Mubarik

Respondent/husband

Procedural Posture

Family/ancillary Relief/enforcement / Preliminary Application for Hadkinson Order Prior to Substantive Hearing

Legal Issues

  1. 1 Whether non-payment of a matrimonial money order constitutes contempt of court without proof of wilfulness
  2. 2 Whether the standard of proof for wilful non-payment in Hadkinson applications is civil or criminal
  3. 3 Whether the respondent/husband should be debarred or placed on terms from participating in the substantive hearing due to non-compliance with court orders

Ratio Decidendi

The husband's non-payment of the lump sum order constitutes contempt of court regardless of culpability; however, the court's discretion as to whether and how to act on the contempt must consider all circumstances, with particular weight on whether the husband could have paid. The standard of proof for wilful non-payment in this context is the civil standard. The wife’s Hadkinson application succeeds in principle, but the husband will not be debarred from defending the substantive applications; instead, he will be permitted to participate only on specified terms designed to ensure fairness and facilitate enforcement.

Court Disposition

Application granted in part; Hadkinson order made imposing terms on husband's participation in substantive hearing.

Orders

  • By 12th June 2006, the husband must send an irrevocable letter to the Jersey Trust trustees accepting the court's orders and findings and requesting their assistance in meeting his obligations.
  • For every £1 paid to his own lawyers for the December 2006 hearing, the husband must pay £1 into a joint solicitors' account, to be held to the order of the court and paid to the wife's solicitors unless the court rules otherwise at the conclusion of the hearing.