Rules and correct procedure in the Family Courts are in place to ensure that the ultimate outcome is fair to all parties involved. If there are procedural irregularities it is possible to appeal to a higher court.
This was the case in the recent judgment of Iqbal v Iqbal  in which the Court of Appeal found that there we so many glaring omissions from the decision making process conducted by the lower courts that it unanimously allowed a husband’s appeal.
The husband and wife lived with the husband’s wealthy extended family in Pakistan until 2007. They then moved to New York and to London in 2009. It was common ground that the husband was estranged from his family by this time.
The husband had returned to Pakistan and therefore did not attend the hearings. An interim order was made in December 2010 ordering the husband to pay the wife £10,000 per month. At the final hearing in 2015 the court found that the husband had £6.44 million available to him and therefore awarded the wife £3 million as her share of the family wealth and arrears of monthly maintenance. The husband appealed.
The Court of Appeal granted his appeal and also set aside the judgments of two enforcement hearings - the first ordering the husband to pay a fixed sum to the wife and the second committing him to prison for six weeks for failing to do so.
Should the court have found that the husband was able to make the payments ordered? More specifically, had the husband had access to the funds from his extended family?
Court of Appeal judgment
The Court of Appeal found that the lower court could not have properly determined that the husband had this money available to him due to the following procedural errors:
- The wife was never sworn in to give evidence and her written evidence did not contain a signed statement of truth
The lower court should not have relied on her oral evidence. The fact that she was not sworn in meant that it was impossible to rely upon, or challenge, her evidence at a later date. In addition, the wife had made submissions about which the husband had had no notice and which he disagreed with.
- Adverse inferences were drawn from the fact that the husband did not attend the hearings
The Court of Appeal noted that the husband’s attendance had been excused at the interim hearing and he should have been made aware that adverse inferences may have been drawn as a result of his absence at hearings, but was not informed of this.
- No real attempt was made to case manage the hearing
It is the court’s duty to actively case manage hearings and to conduct proper enquiries into the evidence presented.
- There was no sign that the documentation produced by the husband in the proceedings had been considered by the court. He was unable to provide his own evidence due to the wife filing her evidence (to which he was to respond) a mere eight days before the hearing
The court should have considered the husband’s evidence and it should have been possible for the husband to give evidence at the final hearing, maybe by video link.
- In none of the hearings was a full judgment given
The failing of the lower courts to provide full reasons for the judgments was a serious error. Parties are “entitled to a determination, no matter how short, that is capable of being scrutinised so that it can be understood and so that advice can be given about it and ultimately an appeal court can ascertain whether it was sufficient in law and on the facts”.
As a result of the procedural unfairness, the case was referred back to the Family Court for proper determination.
Commenting on the judgment, partner Simon Blain said: “When the courts are faced with a party in dire need, and the other party appears to be obstructive, there is an understandable desire to bring about a resolution. This judgment confirms it is never right to cut corners in the interest of expediency.”