The papers, not to mention the letters and comments pages, have been awash with reactions to one particular case over the last few days: that of anaesthetist Dr Essam Aly and his estranged wife Enas, the so-called 100% divorce case.
The story goes that Dr Essam Aly left his wife and children in 2011, dashed off to Bahrain, remarried and had another child there and he has neglected to pay anything by way of spousal or child maintenance to his first wife since 2012.
He is thus classed as a ‘serial defaulter’, and this does not bode well in the English courts.
In order to address this problem and to ensure that Enas and their two children might be properly provided for in the future, a judge last year awarded the ex- Mrs Aly close to 100% of the capital assets from the marriage. Mr Aly appealed; the original award has just been upheld by Lord Justice McFarlane, Lord Justice McCombe and Lady Justice Macur in the Court of Appeal.
The wife has been awarded the proceeds of the sale of their £250,000 home in Burton, Staffordshire, plus another £310,000 held in the bank.
Somewhat predictably, this has led to some shrill commenters panicking that this will ‘open floodgates’ to various instances of women ‘taking men for all they’ve got’. However, this was a very specific case, and of course, family law judges can operate a fairly wide discretion.
Lord Justice McFarlane said that the husband had effectively “abdicated responsibility” for his wife and their children and that “Looking to the future, there was no expectation that she could look to him for any future payment of maintenance and it was therefore necessary for her to achieve an award representing effectively most of the capital assets.”
This was a case that certainly went against the principle of sharing assets on divorce, but the judges found themselves in a position where there was very little else they could do to achieve a fair outcome. MacFarlane LJ admitted that, in relation to the original award granted to the wife: “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.”
Ayesha Vardag commented on the decision of the Court of Appeal, explaining the legal logic behind the decision:
The rules about having 50% of the assets only apply where the parties have more than they need. In needs cases we frequently achieve far more than half for our clients, especially when they have a much weaker earning capacity or are the primary carers who need to keep a roof over the children’s heads. It can be the only way to meet their needs. The one with the high paying job can go on and build up their capital again – the one at home with the kids and a compromised career can’t. The courts will try to give maintenance in a lump sum if they can. This was a very straightforward decision to make sure this wife and children got something out of a non-paying husband. It secured the funds for the weaker party – a lump sum in the hand is worth years of uncertain maintenance in the bush. The message to spouses thinking about wriggling out of their payments is: if you look like a bad risk for maintenance, it may cost you more in capital up front.