The recent case of Alireza v Radwan and Others  EWCA Civ 1545 considered whether the inheritance of a wife, who was entitled to a substantial inheritance from her father under the rules of “forced heirship” in Saudi Arabia, applied to UK divorce and financial proceedings. The judges involved in this case did find that inheritance received by way of forced heirship was applicable to the proceedings, but what affect does this actually have on the matrimonial law in England and Wales.
What is forced heirship?
Forced heirship is a legal concept that is recognised in many EU countries such as France, Germany, Italy and Spain, it is also common in the Muslim religion. Forced heirship is not applicable to UK inheritance as the laws of succession are different. Assets in the UK are passed on death according with the deceased’s will or under the statutory rules of intestacy.
Where forced heirship is applicable it would mean that a person is not free to dictate who inherits his estate, particularly immovable assets such as property and land. A person in a position where forced heirship applies is prohibited from disinheriting certain kin, most commonly his spouse or children. The law requires that deceased person’s estate must pass to one or more blood relatives who are referred to as “protected heirs” therefore, bringing a sense of certainty to who will receive what upon a relations death, unlike the law in the UK.
How does this apply in the UK family court?
When financial proceedings are issued in the UK family courts and the courts are required to consider division of assets and the meeting of the party’s needs, the judge will refer to Section 25 of the Matrimonial Causes Act 1973.
Section 25 (2)(a) states that the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future should be in the judge’s regard. This section of the act was the basis of the argument made on behalf of the husband in the case of Radwan & others mentioned above.
The court found that a prospective inheritance that was to be certain, such as inheritance by way of forced heirship, was to apply to matrimonial law and was to be regarded as a financial resource. However, it was maintained that although the wife in the above case was expecting a substantial inheritance it did not and should not mean that it was inevitably appropriate for the court to make an order whereby the meeting of the needs of the wife in anyway depended on the inheritance from her father.
How this judgement will develop going forwards is to be seen, it is certain that any inheritance that is without doubt going to be received is a resource the party to the marriage is likely to have in the foreseeable future, although ultimately it was decided to be wrong in this case to take into account the wealth of the parties parent’s.
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