An award of 100% of a couple’s assets to the wife has been upheld on appeal.
There is no set formula for calculating financial divorce settlements and the Court has always had a very wide discretion in deciding who gets what. Under the Matrimonial Causes Act 1973 (the MCA), the Court has a duty to consider all the circumstances of the case but give first consideration to the welfare of any child of the family under the age of 18. The Court has to apply the statutory criteria under section 25 of the MCA (looking at the financial resources of the parties, their financial needs and obligations, their standard of living, the age of the parties, any physical/mental disability and any benefits each party will lose upon divorce). Case law has developed further guidance that the starting point for the Court should be an equal division of the assets/resources unless there is a good reason to the contrary. A departure from equality may be appropriate where for example an equal division of resources cannot meet the parties’ needs. The Court tend to try and achieve a clean break (where appropriate) so that there is no ongoing financial link between the parties.
Mr and Mrs Aly got married in 2002 and had two children together. Mr Aly worked as an anaesthetist and Mrs Aly was a qualified GP. Mr Aly left his wife and children in 2011 and moved to Bahrain. He met another woman and they underwent an Islamic marriage ceremony and they had a child together. Described as a “serial defaulter” who has “washed his hands” of his wife and children, Mr Aly paid nothing in terms of child support or maintenance to Mrs Aly since 2012, leaving her and his children to fend for themselves. In the Birmingham Family Court in 2014, Judge Mark Rogers awarded Mrs Aly 100% of the couple’s assets which included the proceeds of sale of their £250,000 home in addition to £310,000 held in the bank. Mr Aly’s lawyer described the ruling as “an extraordinary departure from equality” and pointed out that Mr Aly was willing to pay £40 per week for each child.
On appeal, Lord Justice McFarlane said that the wife’s case was that he had effectively “abdicated responsibility” for her and his children. Lord Justice McFarlane upheld the award and added further that:
- The Judge was entitled to hold there was no realistic expectation of getting any further maintenance out of the husband;
- Mr Aly was beyond the reach of enforcement of courts in this country;
- The Judge was required to give first consideration to the welfare of the two children;
- On the case before the Judge, the wife was to have the sole responsibility and financial burden for raising the children;
- Therefore, it was necessary to award her the ‘lion’s share’ of the assets as she needed these to house herself in appropriate accommodation and make provision for the children.
This was a very unusual case and certainly whilst departures from 50/50 are common place an award of 100% of the assets to one party is not.