The Court of Appeal has taken a rare decision to award that a former wife receive the entirety of the family’s assets to compensate her for the husband’s failure to support her or the children.
The jurisdiction of the court to make Orders in ancillary relief proceedings is found in the Matrimonial Clauses Act 1973, and subsequent case law. In making such orders the court has a duty to consider all circumstances when considering how to distribute the assets that were accrued during the course of a marriage. When considering the distribution there are three main principles that are applied which are need, compensation and sharing with an overarching requirement of fairness. When having regard to all the circumstances of the case, the first consideration given by the court is the welfare of a minor or child of the family who has not yet reached the age of 18. The question that can trouble litigants is how far back the principle of fairness can be pushed when there are issues in relation to the maintenance of the children of the family. A recent decision from the Court of Appeal has confirmed that position in recent weeks.
The court heard that Aessam Ali, an anaesthetist, left his wife, Enas, in 2001. Following separation he moved to Bahrain. Since relocation he did not pay any maintenance or child support to his wife after 2012 although he had offered minimum payments of £40 per week for each child. The assets that were available to the parties were the former matrimonial home and savings of £310,000 accruing a fortune of £550,000. The difficulty that the wife had was that, whilst Mr Ali was living in Bahrain, he was out of reach of the Child Support Agency as well as the British Courts. Mrs Ali had a genuine fear that her husband would never contribute payments to support either her or their two children again.
Initially, the Family Court judge ordered that the family’s entire £550,000 fortune should be paid entirely to the wife, and this has subsequently been upheld by the Court of Appeal. Lord Justice McFarlane agreed that the wife’s case was that the husband had effectively abdicated responsibility for her and their children. It also confirmed that Mr Ali had been a serial defaulter with his payments. Looking to the future there was no expectation that Mrs Ali could look to Mr Ali for any future payment of maintenance and, therefore, it was necessary for her to achieve an award representing, effectively, most of the capital assets.
Those representing Mr Ali were of the view that there was substantive unfairness in handing the wife all the couple’s assets. It was Mr Ali’s position that the judge at first instance had effectively added up future maintenance payments and awarded them all in one go; something that he was not at liberty to do. The Court of Appeal, through Lord Justice McFarlane said 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, and he was beyond the reach of enforcements of the courts in this country. He had not been paying for the previous two years, and the judge was required in determining the outcome of the financial provision proceedings to give first consideration to the welfare of the two children.