July 15, 2015

Why Appeal Court awarded ex wife the family estate

By Peter Jones, founder and partner 

The Court of Appeal’s decision to order 46 year old anaesthetist, Dr Essam Aly, to pay his ex-wife Enas every penny of the family’s entire £550k estate has been described as an extraordinary departure from equality.

Dr Aly left Enas in 2011 and moved to Bahrain – where he is outside the jurisdiction of the Child Support Agency and British courts – and has not paid any maintenance or child support since 2012.

In my experience, the court will always try to fairly divide income and capital where appropriate. However, when one party demonstrates conduct to such an unacceptable level – which does not always need to involve violence – then, as demonstrated in this case, the court may find itself unable to ignore it.

Upholding the award, 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.

“He was beyond the reach of enforcement of courts in this country. He hadn’t been paying for the previous two years. The judge was required, in determining the outcome of the financial provision proceedings, 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 bringing these children up.

“The judge, therefore, concluded that she should have the lion’s share, if not all, of the assets, as she needed them to house herself in appropriate accommodation and make provision for these children. Thus it was that he awarded her a far more substantial lump sum than would otherwise have been the case if equality was the only yardstick.”

Here we have a case where, on the face of it, a husband was out of the country, beyond the grasp of the court – and refusing to support the family. At Jones Myers we constantly emphasise the importance of putting the interests of the children first, and I do not find it in the least bit surprising that the outcome was to give the wife the capital to ensure the future security of herself and her two children.

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