There was wide-spread uproar in the press last week when the Court of Appeal dismissed a husband’s appeal against a judgment, handed down last July, that his wife should receive almost the entirety of the family’s £550,000 estate on divorce. Some commentators decried the coming of the ’first 100% divorce’ as a bad omen for husbands everywhere. Closer inspection reveals this to be an extremely unusual case on its facts and a fair and sensible judgment in the circumstances.
It is reported that Dr Essam Aly, a 54 year old hospital consultant, left his wife of nine years, Enas, a 46 year old GP, and their two children in 2011. He moved to Bahrain the following year where he married another woman and had another child with her. Despite repeated requests, he had not paid any maintenance or child support to Enas since 2012. The Court of Appeal judged that he had "abdicated responsibility" for Enas and their children. Bringing enforcement proceedings against him in relation to the unpaid maintenance in Bahrain proved nigh impossible, so Enas obtained a freezing order over those of her husband’s assets which were within the Court’s grasp. Enas was eventually awarded almost all of these assets by the Family Court.
In the Court of Appeal, Essam argued that this ’100%’ judgment was substantially unfair. It certainly is unusual. The starting point, with a marriage of this length, is a fifty-fifty division of capital. However, there are many reasons why the court may depart from what is known as ‘the yardstick of equality’. The court will seek an outcome in which both parties can be adequately rehoused and the primary consideration of the courts in financial remedy cases is the welfare of the children. In this instance, the court found that, in spite of his clear wealth, “there was no realistic expectation of getting any further maintenance out of the husband”. As such, the Court of Appeal agreed that Enas “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.”
In spite of the court’s clear distaste for Essam’s behaviour, the judgment was not punitive. It was practical. Ordinarily, spousal maintenance and child support would be paid out of the payer’s income but, in this case, the court understandably ruled that, given his past form, the husband could not be trusted not to default if it ordered that he make regular maintenance payments to Enas and the children.
As such, the court effectively ordered that maintenance was payable upfront from accessible and realisable capital. Enas was therefore given “a far more substantial lump sum than would otherwise have been the case if equality was the only yardstick.” This ruling is certainly extreme but as Lord Justice McCombe asked in the Court of Appeal: "What was the judge supposed to do, faced with a serial defaulter, to make proper provision for this family?"