Family Law: Wife obtains 100% settlement
A hospital consultant has been ordered to pay 100% of his wealth to his wife.
This is an exceptional decision and one confirmed by the Court of Appeal as fair.
The husband, Essam Aly, an anaesthetist left his wife, Enas Aly in 2011 and failed to pay any child support since 2012. There was a concern that the husband would never again support his wife and children; and so the family court made an award that his wife receive all of the £550,000 family assets.
This case is a real reminder that in English family law the courts retain a very wide discretion.
People often believe that everything should be divided 50/50 and whilst sharing can occur, the court is obliged to consider a variety of factors to include needs, such as for housing and income.
What are the settlement principles?
There is no presumption of a 50/50 division in England. However, the Courts will look at a 50/50 split and then the question needs to be asked that if this is not fair, then why is it not fair? The first consideration is the welfare of any minor child of the family who has not attained the age of 18.
In respect of the powers of the Court i.e. for adjusting rights in property, lump sums, pension sharing, maintenance and so on, a Court should have particular regard to a number of statutory factors including (but not limited to):
- 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.
- The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.
- The standard of living enjoyed by the family enjoyed before the breakdown of the marriage.
- The age of each party to the marriage and the duration of the marriage.
- Any physical or mental disability of either party to the marriage.
- The contributions of which each of the parties has made or is likely to make in the foreseeable future.
- The conduct of each of the parties (which has to be quite significant and is rarely taken into account).
Needs trumps sharing
Needs can often be the reason to depart from what is often called the ‘yardstick of equality’; particularly where there are children involved. Unless there are millions of pounds or surplus resources for example, in most cases needs will trump sharing.
The international dimension
Where there is a case with an international aspect such as this, it is very important that spouses takes advice in all relevant jurisdictions to consider which country best suits them, particularly in terms of financial outcome as the differences can be quite stark. It is also important to consider any enforcement issues because an award from a court maybe meaningless in reality if it can be enforced.
Court of Appeal
Nevertheless a decision giving a spouse 100% of the assets is certainly exceptional; and a fair balance needs to be given to the needs of both parties and any minor children.
But in this case, Lord Justice McFarlane said: “The judge had a case in front of him where he was entitled to hold there was no realistic expectation of getting any further maintenance out of the husband.”