The Family Division of the High Court in England and Wales has just published its judgement in the case of Her Royal Highness Haya Bint Al Hussein v His Highness Mohammed Bin Rashid Al Maktoum. The Applicant's father is the former King of Jordan (King Hussein) and she was the youngest of six wives of the ruler of the Emirate of Dubai and Prime Minister and Vice President of the United Arab Emirates.
Princess Haya fled from Dubai to the United Kingdom with her children in 2019 claiming that she feared for her life, and that she had discovered that her husband had previously arranged for the abduction of his daughters Sheikha Latifa and Sheikha Shamsa and for their return to Dubai against their will. In 2019, the Family Court ruled that, Sheikh Mohammed had indeed orchestrated the abduction and forced return of his daughters to Dubai and that he had subjected Princess Haya to a "campaign of intimidation." Further, the Family Court ruled this year that Sheikh Mohammad had been involved in the illegal hacking of the mobile telephones of Princess Haya, her bodyguards and her legal team.
In view of these earlier rulings, as well as concerns about Sheikh Mohammad's attempts to mislead the court, the Family Court decided that Princess Haya and her children were particularly vulnerable and required a high level of security to ensure their safety, the main threat to them being from Sheikh Mohammad himself and the "full weight of the State that he has available to him." Accordingly, the court awarded Princess Haya sums in excess of £500 million as part of the divorce settlement. The presiding judge explained that he had regard to the "very clear … exceptional circumstances of this case, such as the truly opulent and unprecedented standard of living enjoyed by these parties in Dubai." The sum awarded to Princess Haya comprised of a capital sum payment of over £251 million, which included sums to cover her security needs for life and for the children during their dependency, the costs of their university education, and compensation for loss of her personal property and the costs of litigation. She was also awarded periodical payments of £5.6 million per annum per child until they complete university education (secured by an HSBC Bank Guarantee of £290 million), to cover their general maintenance and to continue thereafter to cover their security needs as adults, and was granted an education fund for the children of over £3 million. This constitutes the highest ever award in a divorce action in an English court to date.
Had the couple resided in Scotland and Princess Haya applied for financial provision on divorce, how would a Scottish court have approached the issue?
The principles for dealing with financial aspects of divorce are enshrined in the Family Law (Scotland) Act 1985. The Scottish system applies an arguably more stringent approach to the principle of a "clean break" in divorces than in England and Wales. The starting point is to identify matrimonial property, which includes the net value of a heritable property acquired by the parties for use by them as a family home or furniture or plenishings for that home and assets acquired by the parties during their marriage (and before the date of their separation) after deduction of any debts incurred by one or both parties during their marriage. It specifically excludes gifts from third parties and inheritances. The court has discretion to consider "special circumstances", which can include the source of funds for matrimonial property where those funds did not derive from the income or efforts of the parties during the marriage. This contrasts with the approach of the English courts, which (subject to some limited exceptions) focuses more on the net assets of the parties at the date of separation, rather than identifying if they relate to the marriage.
Once matrimonial property has been identified, the net value of matrimonial is to be shared "fairly" between the spouses which generally means equally or in such proportions as may be justified by special circumstances. This is different to the position in England and Wales, which is far less definite and involves courts considering various factors including the welfare of the children, financial needs, income, the length of the marriage and the standard of living. There are certain principles which the Scottish court can consider when assessing how to divide matrimonial property. The court must take fair account of any economic advantage derived by either from contributions by the other and any economic disadvantage suffered by either in the interests of the other or of the family. The court must also consider the economic burden of caring after divorce for a child of the marriage under the age of 16 years Further, where a spouse has been dependent to a substantial degree on the financial support of the other; the legislation states that they should be award such financial provision as is reasonable to enable them to adjust over a period of not more than three years from the date of the decree of divorce to the loss of that support on divorce. Finally, the court has the discretion to award such financial provision as is reasonable to relieve a spouse who is likely to suffer serious financial hardship as a result of the divorce to relieve them of hardship over a reasonable period which may have been particularly relevant in Princess Haya's case.
Notwithstanding of all these discretionary powers open to the court, examination of Scottish case law demonstrates a continued reluctance to stray far beyond equal sharing of matrimonial property, even when factors justifying an equal sharing apply.
When dealing with financial provision on divorce, the court has various powers available. It can make an order for a capital sum payment, an order for transfer of property, an order for periodical allowance, a pension sharing order and a pension compensation order. With regards to the ability of the Scottish courts to grant a periodical allowance, this would involve payment of ongoing sums at such a rate and frequency as the court may specify and for a definite period, an indefinite period or until the happening of a specified event (which could have mirrored in with the approach of the English courts regarding ongoing security costs and the financial dependence of the children). The courts have, similarly, been modest when making orders for periodical allowance in reported Scottish cases.
Princess Haya could also have sought payment of aliment relating to the children. Whilst child aliment (or "child maintenance") is ordinarily dealt with by the Child Maintenance Service, it is competent to seek payment of aliment in respect of a child where the paying parent's income exceeds £3000 per month. Further, Princess Haya could have sought payment of educational expenses in respect of the children. However, the courts have reiterated that aliment should not be awarded merely because the paying parent has a high income and that the Pursuer requires to demonstrate their "need" for such alimentary payments.
When assessing all of the above, the outcome for Princess Haya may have been very different if the Scottish courts been required to determine financial provision on divorce. There would have been a shift in focus from the parties' assets and needs, and a much greater focus on identifying matrimonial property and achieving a fair division which is unlikely to have greatly exceeded equal sharing. When assessing division of matrimonial property, there are various principles of Scots law that could be utilised by the court to award certain sums for example for adjustment to loss of support, for a periodical allowance (which may have included consideration of the cost of ongoing security in Princess Haya's case) and in respect of costs associated with children and their education. Nevertheless, an examination of recent Scottish divorce cases acts as a reminder of the conservative approach of the courts when making financial awards which would significantly deviate for fair sharing of assets. It is questionable whether a Scottish court would have been quite as bold as the English Family Court in this case and whether Princess Haya would have been awarded a lower overall capital sum payment in Scotland. English courts generally have a far wider discretion to share wealth, even where the source of that wealth does not relate to income or efforts of the parties during their marriage, though an assessment of recent case law in England and Wales indicates that the gap between the two systems may not be as wide as it once was.