Judge’s discretion

Divorce|September 26th 2012

Solicitor Laura Guillon examines the legalities surrounding a Court of Appeal hearing recently reported in the press

We recently received an enquiry through the blog regarding the recent judgment of Lord Justice Ward in the case of Al-Saffar v Al-Saffar [2012] EWCA Civ 1103. This was an appeal from the Blackburn County Court concerning two applications following an Order made in May 2008 by District Judge Jones. The first of the applications before Blackburn County Court was Mrs Al-Saffar’s application to enforce a periodical payments order that had been made on 21 May 2008. Throughout this post I shall refer to the parties as husband and wife, despite them being divorced, as did Lord Justice Ward in his judgment on appeal. Although this is a Cade involving relatively few assets it does give us an idea about how individual Judges exercise their discretion and their important role in a process which is not formulaic. It is particularly interesting in the light of the Law Commission’s recent report which has recently been covered by Marilyn Stowe. This is an example of how the current system works in practice.

The husband had been ordered to pay the wife £1,000 per month from June 2008 until June 2013, a total of £60k in all with the wife being able to apply for an extension if she could demonstrate the need to do so. The husband madee only made 4 payments in accordance with the order and subsequently stopped paying. He argued that he stopped paying because he had been informed by the wife’s family that she had inherited substantial assets from her father after his death in 2007.

It is not clear whether she received this inheritance before the order was made in May 2008 but there is nothing to suggest that she was in receipt of the inheritance at that time. It was the wife’s case that from the day the order was made the husband has protested that the payments were contrary to Islamic culture and he was not going to pay them. His Honour Judge Booth who heard the applications at Blackburn County Court heard evidence from both parties on this matter and concluded that the wife’s evidence was more accurate. He subsequently ordered that the husband pay all of the outstanding maintenance arrears, giving leave for the wife to claim for arrears accrued more than twelve months ago. Lord Justice Ward agreed with the decision, stating: “I simply cannot see that the judge was wrong to order the whole of the arrears”.

The second application that His Honour Judge Booth had to deal with was the variation of the maintenance order. The husband argued that the wife had been able to accumulate savings of £13,000 despite not receiving any maintenance from him which demonstrated that she did not need the money. The husband also asserted that the wife had other accounts in her name or her family’s name in which she was holding more money and hiding it from the authorities. However, the judge found that there was not “a shred of evidence to back up any of those allegations”.

Lord Justice Ward stated that he was troubled by the way the judge dealt with the variation though. The husband’s case was that the wife had received a substantial inheritance and therefore did not need the maintenance. He was concerned that the judge had not approached the issue of variation from the position of how matters stood at present rather than how they stood in May 2008 when the original order was made.

Lord Justice Ward stated that the starting point for any division of capital and income upon divorce is equality and equality can then be departed from depending on the facts of the case. This case was a reasonably long marriage with two children whom the wife had cared for and not pursued a career as  result. The husband was a doctor in secure employment. The starting point would usually be to divide the matrimonial assets. This case was slightly unusual in that half of the former matrimonial home was previously transferred by the husband to his mother. The wife tried to have this set aside but her application was dismissed. Despite that, the other half of the property, which was owned in the husband’s name could still be split between the husband and wife but it was not. There is some speculation as to why this was not done. It may have been partly so as not to attract a charge from the Legal Service Commission or may have been because the wife, for religious reasons, did not think that she should take a lump sum of that kind. Regardless of the reason, the fact is that the husband retained all of the matrimonial assets and the wife was awarded maintenance at £1,000 per month. Lord Justice Ward stated that he sympathised with the judge’s view that the order made in May 2008 was a ‘totally fair and proper order to make’.

He explained that inherited wealth is not usually available for distribution when it is received after or shortly before the end of a marriage. Wherever possible the Court tries to ring fence inherited wealth especially where there has not been a mingling of it with matrimonial assets. In approaching the case on a conventional basis, the wife’s receipt of inheritance does not reduce the husband’s obligation to provide for the wife in the terms set out in the order.

Lord Justice Ward stated: “I am driven to conclude that the Judge’s order was one which was well within the discretion he had to make and cannot be shown to be wrong”. He was satisfied that the combination of the order in May 2008 and the order made by the judge at Blackburn County Court “reflect the fairness of the allocation of resources between this husband and wife”.

There seems to have been an emphasis in press reports of the case on English law having been exercised over Sharia law. The decision on whether or not to exercise Sharia law in this case does not feature heavily in the judgment of Lord Justice Ward and does not appear to have been the husband’s argument as to why he should not pay the wife’s maintenance. However, His Honour Judge Booth had found the wife’s evidence more convincing in that he believed that the husband had not paid maintenance because he considered it to be “illegitimate or unacceptable or illegal in some way according to Islamic culture”. He made a finding of fact which is something judges are frequently required to do. In any event the final determination of the case is at the judge’s discretion after consideration of all the evidence put before them.

In this case three separate judges – District Judge Jones who made the order in May 2008, His Honour Judge Booth at Blackburn County Court, and Lord Justice Ward – all exercised their discretion to reach a conclusion that was deemed to be fair and reasonable on the facts of the case. They had to consider a capital award, periodical payments, the length of the term and inherited assets, within the context of the couple’s own circumstances. The husband may feel that he was unfairly treated but judges have a wide range of discretion in family proceedings and will always try to achieve a fair outcome. As Lord Justice Ward says at the end of his judgment: “[t]he fact that he (His Honour Judge Booth) found against him (the husband) does not indicate that he was unfair in his treatment”.

Laura Guillon is a solicitor with Stowe Family Law.

After gaining an honours degree in Law at Leeds University, Laura attended the College of Law in York, where she completed the Legal    Practice Certificate, gaining a commendation with a distinction in family law.

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