Hadkinson Orders

seeking compliance with a court order 

Securing a satisfactory maintenance order or achieving a valuable financial settlement after a divorce is often just the beginning. Even when there seems to be an abundance of marital assets, enforcing a financial order can still be quite challenging.  

If you need to enforce a court order against an uncooperative spouse, there are several options available. One effective method is a Hadkinson order, which is especially useful if the non-compliant spouse is simultaneously pursuing any type of application against you in the case. 

If you’re currently going through a divorce or have already divorced and your spouse is not adhering to court orders, we are well-equipped to assist you. Click below for a free initial consultation with one of our expert divorce solicitors. 

BOOK FREE CONSULTATION

what is a hadkinson order?

A Hadkinson order is an unusual order but can be vital in the right circumstances. Where a party is in breach of a court orders, for example if they have failed to pay money or provide disclosure, a Hadkinson order will prevent them from making other applications and being heard in court proceedings until they have complied with the order which they are breaching. It is called a Hadkinson order from the eponymouse case Hadkinson v Hadkinson [1952] P 285.

For example, there may be a situation in which a spouse who is not fulfilling their court-ordered obligation to make regular maintenance payments is wanting to apply to the court to reduce these payments. Since failing to make the payments is considered contempt of court, the other spouse can request a Hadkinson order to prevent the non-paying spouse from applying to change the maintenance payments. This is an important way of ensuring court orders are complied with and can be very helpful in the right case. 

Hadkinson orders are typically used as a last resort, where there is no other effective means of securing a party’s compliance.

hadkinson v hadkinson

Hadkinson v Hadkinson concerned a mother’s removal of a child abroad following her divorce with the child’s father, in defiance of a court order. The mother was ordered to return the children to England, but she failed to do so. She sought to appeal the court’s decision, but the Court of Appeal held that she could not proceed with her appeal whilst she was in contempt of court. The case established that parties must comply with a court’s decision before they can seek further legal action - hence ‘Hadkinson orders’.

when will the court make a hadkinson order?

Hadkinson orders are seen as quite a draconian measure, as they prevent the party in breach from bringing applications to the family court. In the case of De Gafforj (Appeal – Hadkinson Order) [2018] EWCA Civ 2070, Peter Jackson LJ provided a helpful summary of the conditions which must be met for a Hadkinson order to be made, namely:

1. The respondent must be in contempt;
2. The contempt is deliberate and continuing;
3. As a result, there is an impediment to the course of justice;
4. There is no other realistic and effective remedy; and
5. The order is proportionate to the problem and goes no further than necessary to remedy it.

caselaw example: DS v HR [2019]

The case DS v HR [2019] EWHC 2425 (Fam) concerned a wife’s application for a Hadkinson order following what the judge described as “some of the least attractive and commercially suicidal litigation”. The husband was in breach of a court order to pay child maintenance for their two children, having stopped paying after a costs order was made against him. The wife succeeded in obtaining a Hadkinson order against the husband, which preventing him from appealing the costs order.

This case was interesting as it marked the first use of a Hadkinson order in proceedings which were not the same, but were related. The husband was prevented from appealing a costs order made in Family Law Act proceedings, unless he complied with the order for child maintenance which was made in financial remedy proceedings.

The judge acknowledged that making the order was an extension of the Hadkinson principle, as Hadkinson orders are usually made in proceedings which are the same, but found that this was acceptable as the two proceedings were “intrinsically linked” and highlighted that it was the making of the costs order in the Family Law Act proceedings which directly resulted in the father’s refusal to pay the child maintenance ordered in the other proceedings.