Yesterday I was contacted by Frances Gibb, the great Times legal correspondent, about a very unusual divorce case. As I have noted more than once on this blog, the starting for the family courts when dividing the matrimonial assets of a divorcing couple is equality – the principle that each spouses should receive an equal share regardless of their actual economic contribution to the marriage. This has been the case ever since White v White, a much discussed, precedent-setting judgment issued back in 2000.
But equality is, as mentioned, only the starting point for such cases and the courts will consider an unequal division in some circumstances. One is the so-called ‘stellar contribution’ – the argument that the financially dominant partner in a marriage (usually but not always the husband) made such a unique and special contribution to the couple’s wealth that they deserve a higher share. This argument dates back to the 2001 case of Cowan v Cowan, and it has succeeded in some cases, for example Charman v Charman in 2006. But such successes are the exception rather than the rule. Another preserves assets which can be described as non-matrimonial and which can be ring-fenced if the couple’s reasonable needs can be met without having to touch them.
For most couples, though, such arguments are pie in the sky. All the assets, no matter where they came from, may need to be used to meet both party’s reasonable needs and in many cases, there simply isn’t sufficient to go round. But the courts go to great efforts to make sure that those reasonable needs are met as far as it is possible to do so.
In this new case, we see a very different departure from what family lawyers term ‘the sharing principle’. The judgement does not appear to have been published yet, but it concerned a hospital anaesthetist who left his family in the UK after a nine year marriage and moved to Bahrain. The consultant in question, Essam Aly, started a new relationship over there and now has a child with another woman. But he has not, it seems, paid any maintenance or child support to his former wife Enas, a GP, and their two children since he left the UK three years ago.
Mrs Aly launched a legal action, claiming that her husband “abdicated responsibility” for his family. She obtained a freezing order on his assets and obtained details of his various bank accounts. In a remarkable judgement, the doctor was then ordered to pay virtually his entire fortune, estimated at around £550,000, over to ex-wife. This, it was estimated, would allow the maintenance ordered to be paid to the wife and children, but it would paid out of capital, rather than out of income as is usually the case.
Mr Aly took the case to the Court of Appeal, where his counsel argued that the ruling was substantially unfair and the court had to consider his needs as well. The judge had effectively awarded a lifetime of maintenance in one go, she declared, and insisted that the Mr Aly was willing to pay £40 per week maintenance for the two children in the UK.
But the Court of Appeal was unconvinced. Lord Justice McFarlane declared:
“The judge had in front of him a case where he was entitled to hold there was no realistic expectation of getting any further maintenance out of the husband. He was beyond the reach of enforcement of courts in this country. He hadn’t been paying for the previous two years [at the time of the earlier hearing].”
The primary consideration of the courts was the welfare of the children, His Lordship added.
“The judge, therefore, concluded that [Mrs Aly] should have the lion’s share, if not all, of the assets, as she needed them to house herself in appropriate accommodation and make provision for these children. Thus it was that he awarded her a far more substantial lump sum than would otherwise have been the case if equality was the only yardstick.”
This ruling may seem harsh but I believe it is fundamentally fair. It at last deals with the explosion over recent years the number of transnational cases in which the paying partner leaves the country and, he calculates, in doing so leaves his obligations behind as well. This husband had, after all, not paid a penny to his former family for several years despite his own evident wealth and he seemed likely to continue (not) doing so. My hope is that this case will set a precedent for other desperate spouses who have tried and failed to enforce child support orders abroad. Attempting to do so can be expensive, lengthy and cumbersome, and so it is no surprise that many simply give up. Perhaps this case will provide a ray of light for such clients in the future if the family courts are brave enough to follow this example and order accordingly
Read the Times article here (subscription required).