Financial Remedy in Family Proceedings: Maintain or Bust

Financial Remedy in Family Proceedings: Maintain or Bust

Very occasionally there crops up a divorce case (or more specifically, the financial element to a divorce case) which attracts the attention of the national media and gets whipped up into a frenzy due to the extraordinary facts surrounding the case.

So far this year we have already seen Wyatt and Vince, the new-age traveller turned millionaire whose ex-wife has successfully applied to the Supreme Court to stake a claim for maintenance on his fortune some 20 years after having divorced, and Sharland and Gohil, two "scorned" ex-wives who are attempting to have their financial settlements overturned on the basis of their respective ex-husbands concealing the true extent of their wealth at the time of the divorce proceedings.

Another such case has now come to the fore; the case of Dr Essam Aly and his estranged wife Enas Aly. Dr Aly (a consultant anaesthetist) and Mrs Aly (a GP) married in 2002 and had a son and a daughter before they separated in 2011. The following year Dr Aly moved to Bahrain, started a relationship with another woman, underwent an Islamic marriage ceremony and had another child.

The Court was told that Dr Aly had failed to pay any maintenance or child support since 2012, and with him being out of the reach of the British Courts and the Child Support Agency by virtue of his residing in Bahrain, it was feared that the "serial defaulter" would never contribute payments to the maintenance of his wife or their children.

The Court's first concern in any financial proceedings is that of the welfare of any children of the marriage. In order to ensure that Mrs Aly and the two children were adequately provided for in the future, Mrs Aly was last year awarded the entirety of the couple's capital assets of the marriage, namely the proceeds of sale of a property worth £250,000 and £310,000 cash in the bank.

Unsurprisingly Dr Aly appealed, and it is this decision which has caused pandemonium in the media. The Court of Appeal upheld the decision made by the original trial Judge to award Mrs Aly 100% of the marital assets. The Court concluded that Dr Aly had effectively "abdicated responsibility" for his wife and children and "looking to the future, there was no expectation that she could look to him for any future payment of maintenance and it was therefore necessary for her to achieve an award representing effectively most of the capital assets."

This decision has inevitably attracted concerns that a precedent has been set for women to start fleecing their husbands for all that they have, but it is important to remember the unique facts of this case which warranted such a departure from the usual principle in divorce of a starting point of a 50/50 division of assets. The Court said "what was the Judge supposed to do, faced with a serial defaulter, to make proper provision for this family? The wife is looking after the children and the father has washed his hands of them."

The Court also noted that this was a case where "…there was no realistic expectation of getting any further maintenance out of the husband" as he lived overseas and had failed to pay maintenance for the previous two years. The Court concluded that Mrs Aly should have the "lion's share if not all of the assets" as she would be solely responsible for and would be financially burdened in bringing up their children. In effect, Mrs Aly was awarded years of maintenance up front in a lump sum so as to ensure she received the money due to her, and to avoid having to try and enforce the Court Order with Dr Aly living outside of the jurisdiction.

Although this case is exceptional, it is a stark reminder of the Court's power to use its discretion in financial proceedings to protect a disadvantaged party when presented with a "serial defaulter". This will also no doubt serve as a message to those who may be considering abdicating their responsibility to maintain their spouses and their children: maintain or you may just bust.

At Clapham & Collinge, we pride ourselves on our knowledge and expertise combined with our sympathetic, discreet and practical approach to any family law matter. For more information, contact our Norwich branch on 01603 693500 or our Sheringham branch on 01263 823398.