The case Behbehani v Behbehani: Wife struggles to enforce financial award

Divorce | 25 Feb 2020 0

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The case Behbehani v Behbehani: As I’ve often said here previously, a judgment is worthless if you can’t enforce it. Enforcement of judgments is therefore critical to the family justice system. Or to put it another way, the ability to enforce any judgment made in your favour is critical to the success of your case.

Picture this: you are the wife in financial remedy proceedings on divorce. In 2008 you are awarded a lump sum of no less than £20 million from your (ex-) husband. The court ordered that that sum should be paid by no later than the 16th of December 2018, and that pending payment the husband should pay maintenance of £27,750 per month. Yet eleven years after the order was made, you have not received one penny.

Unenviable

Such was the unenviable position of the wife (as I will call her – she has no doubt long since divorced the husband) in the case Behbehani v Behbehani, which went before the Court of Appeal in December.

The background to the case Behbehani v Behbehani was as follows (once again I am simplifying, for the sake of clarity).

  1. The parties were married in 1985.

  2. They had two children, both now grown up.

  3. Throughout the marriage and afterwards, the husband lived in Spain, where he has substantial business interests.

  4. During the marriage, the wife and the children spent much of their time in London.

  5. The marriage broke down in 2000.

  6. In December 2003 the wife issued divorce proceedings, within which she made a financial remedy application. As explained by Lord Justice Baker, giving the leading judgment of the Court of Appeal: “That application took over four years to be determined, during which time the husband only occasionally participated in the proceedings and repeatedly failed to comply with orders for disclosure of his assets and income.”

  7. At the final hearing of the application in November 2008, (at which the husband was neither present nor represented) Mrs Justice Parker concluded that, contrary to the husband’s assertion, he was the true owner of 99.14% of the shares in a Spanish company, ‘Setubal 97’, and that as a result, the husband was worth at least £44 million. On this basis, she awarded the wife £20 million, plus the maintenance.

  8. As indicated, the husband failed to pay anything. The wife, therefore, took enforcement action. To cut a much longer story short, in July 2017 she applied to the court for the appointment of a receiver over the husband’s 99.14% shareholding in Setubal 97, with the aim that the receiver should realise the assets of the company so that the wife could enforce her £20-million award against those assets. Mrs Justice Parker duly made a receivership order, without notice to the husband.

  9. The company applied to set aside the order. I won’t go into the complex technicalities, but in May 2018 Mrs Justice Parker essentially found that the husband did not, after all, own the company, and she, therefore, did set aside the order.

  10. The wife appealed, to the Court of Appeal.

Appeal allowed

In a long and detailed judgment, Lord Justice Baker held that Mrs Justice Baker had been wrong to set aside the receivership order. Again, I will steer away from the technicalities – this post is not about the issues in the case Behbehani v Behbehani, but rather about the wife’s struggles to realise her award.

The appeal was therefore allowed, and the order restored.

Of course, whether this will ultimately help the wife remains to be seen. Enforcing judgments against ‘business’ assets can be very complicated, and enforcing against assets that are abroad is especially fraught with difficulties. I do hope, however, that she will at last receive at least some measure of satisfaction.

If you wish to read the full judgment, you can find it here (as I indicated, it is rather more complex than my truncated summary above).

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