This is a post by Zoe Saunders, barrister at St John’s Chambers about the case of Iqbal v Iqbal [2017] EWCA Civ 19 (25 January 2017).

Enforcement of family law orders in financial cases is not a straightforward process. There are relatively few family specific solutions and the court is left with a number of civil remedies none of which are procedurally or legally very straightforward, especially for a litigant in person.

The Law Commission is well aware of the problem which is why they published a Consultation on Enforcement of Family Financial Orders in 2015 looking at the need for reform.

In their report on the Enforcement of Family Financial Orders they made a number of recommendations – in summary:

• Consolidation of the procedural rules including a new and more efficient procedure for the general enforcement application. This is an enforcement application only available in family proceedings and is often used by litigants in person.
• Provision of more guidance and information for litigants,
• increasing the obligations on the debtor to provide honest and early disclosure of his or her financial circumstances,
• Providing the court with wide powers to obtain information from third parties.
• Extending existing methods of enforcement to assets that currently cannot be enforced against, for example, that creditors are able to enforce against funds held in a joint account and against pension assets.
• Courts should be able to apply pressure to debtors that have the means to pay but are refusing to pay what is owed to the creditor, for example, such debtors may be disqualified from driving or prevented from travelling out of the country until the judgment debt is settled, where it is in the interests of justice to do so.

They also recommended a number of other improvements to the law of enforcing family financial orders. For example, changes to how enforcement cases are allocated, an increase to the period of time to enforce arrears before the court’s permission is required and the introduction of a new power for courts to remit arrears.

The final report was published on 15th December 2016 and the Government’s response is awaited.

Until such reforms are implemented what are the key lessons that can be learned from Iqbal v Iqbal?
The key issue in the case was whether the husband had the ability to pay the amounts he had been ordered to pay. One of the problems was that the wife was trying to enforce an interim order which inevitably had not been made on the basis of full evidence. This is not unusual as most interim orders are made without hearing full evidence. There were problems with the procedure at the interim hearing as the husband’s attendance had been excused on the basis that he filed evidence in accordance with the court’s directions, but the wife who was a litigant in person had attended at court and made additional submissions based on the letter that she had filed. The husband had no notice of these submissions and they were about things that he would have disagreed with.

Lesson number one then is that the wife should either have been kept to the written evidence that she had filed and the husband had seen. In order to ensure fairness if she needed to add to that evidence it should have been at a hearing when both parties attended.

Lesson number two is that if the wife did make further submissions she should have gone through the formalities and sworn that her evidence was true so that the evidence she gave could be relied on by her or challenged by the husband.

There were then further problems with the procedure of the final hearing:

Lesson number three – the way in which the husband could given evidence and participate in the proceedings was not considered. For example the court could have used a video link.

Lesson number four – If the husband continued not to attend court hearings he should have been warned that inferences of fact might be drawn from his absence. If he chose not to attend and not to answer questions the court could decide from that choice that he was hiding things.

Lesson number five – obey the rules! The Family Procedure Rules and Practice directions were not complied with and the wife was allowed to get away with not complying with court orders about her statement which was filed at court late and not sent to the husband, neither was the husband sent a copy of the bundle that the wife sent to the court.

The appeal court was concerned that the husband’s documents may not have been seen by the court at the final hearing. During the final hearing the wife again was not sworn to the truth of her documents and there was little attempt to test what she was saying.

There was also no formal judgment given, which made it difficult for the appeal court to work out how the judge made his decisions at the final hearing.

The court concluded that ‘elementary procedural protections that the husband had a right to expect would be observed were not.’ The consequence was that the final hearing was procedurally unfair and the order made at the end of it must be set aside and a rehearing was needed.
The procedural problems with the enforcement proceedings were just as serious and the consequences for the husband perhaps even more so as he risked being sent to prison.

Again no judgment was given setting out the facts that the court had found to be true and the reasons for their decision. The husband’s appeal was that the procedural protections that he was entitled to had not been observed. In particular that the wife needed to prove beyond a reasonable doubt that the husband did in fact have the ability to pay what he owed and was refusing to do so.

What actually happened at the first enforcement hearing was that the wife produced no evidence that the husband could pay. At the second enforcement hearing the judge declared that the husband was liable to pay the amount that the wife was seeking but he made no further order, again no evidence was filed by the wife that the husband could pay.

At the third hearing the judge dealt with the application and committed the husband to six weeks in prison. This was at a directions hearing and the Court of Appeal was clear that it was not appropriate for the directions hearing to be used to decide the application without the husband being aware of that. This is effectively the same problem as that highlighted in lesson number four above.

Again the judge was not made aware of all the relevant evidence and the wife did not swear to the truth of her evidence. Again there was no judgment given. All these problems with the procedure meant that the process was so unfair to the husband that the Court of Appeal decided that the whole process needed to start again from the beginning.

I must confess to having some sympathy for the wife who was trying to deal with this very complicated procedure on her own, but it was clearly very unfair to the husband who was sentenced to six weeks in prison on incomplete evidence. Hopefully the Government will agree with the recommendations of the Law Commission and bring in the necessary reforms.

Feature pic : courtesy of Aaron Shumaker on Flickr – thanks!