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When 100% is a fair division of assets

Family lawyers are always talking about fairness, and what that means. Sometimes it means equality and equal sharing of a couple’s assets, sometimes is means an unequal split to balance capital and income and to try to meet everyone’s needs, but rarely does fairness require one party to get everything.

You may have seen the coverage in the press in the last week about a case where just that happened, so we thought we would have a quick look. Naturally, the press have reported it in their typical fashion, claiming the wife is “walking away” with the family’s “entire fortune” (see for example this from the Telegraph) , but a brief look at the facts of the case renders the decision a little less dramatic.

The husband and wife in this case are both medical professionals. They married in 2002, and had two children before they separated in 2011. A year after separation the husband moved to Bahrain, where he has since formed a new relationship, undergone an Islamic marriage ceremony, and had another child.

Since moving abroad the husband had made very little effort to support his children, and the judge called him a “serial defaulter”. As he had moved abroad, he was beyond the jurisdiction and thus the reach of the Child Maintenance Service (the body taking over from the CSA), which only has jurisdiction in the UK, in other words England, Scotland, Wales and Northern Ireland.

By way of explanation: in cases where one parent lives abroad the CSA/CMS cannot provide a calculation of how much maintenance the non-resident parent should pay, nor can they take steps to collect those payments. There are a few exceptions to this rule, namely if the non-resident parent works overseas for the UK Civil Service, the armed forces, or a UK Government organisation, or works overseas for a UK company and is paid from a UK payroll. In certain cases, it is possible to go to court to obtain a maintenance order, and for that to be enforced overseas through procedures knows as Reciprocal Enforcement of Maintenance Orders. However only certain countries participate in these arrangements, and the UK authorities have no power to compel foreign courts or authorities to enforce maintenance orders, or to set a timescale for enforcement, as the system is based on mutual agreement.

In any event, Bahrain (in common with most other Middle Eastern states) does not participate in arrangements for reciprocal enforcement of maintenance. So having moved to Bahrain, the husband put himself beyond the reach of the CMS and the courts in relation to maintenance.

The trial judge who dealt with this case had to give first consideration to the welfare of the two children. It was clear that the wife was to have the sole responsibility and financial burden of raising the children, and so he concluded that she should have the lion’s share, if not all, of the assets, as she needed them to house herself and the children in appropriate accommodation and make provision for them. He therefore made an order providing her with the proceeds of sale of the former matrimonial home (£250,000) and the couple’s savings of £310,000. This is what has been described in the press as “their entire fortune”. In this day and age, those sorts of figures do not really amount to a fortune, especially when they have to be used on supporting a family.

The husband appealed this decision to the Court of Appeal. The original award was upheld, with the judges pointing out that on the wife’s case, the husband had “abdicated responsibility” for her and his children. They agreed that the trial judge had been right to decide that the wife had no realistic expectation of any future substantive payment of maintenance from the husband, so she needed all the capital assets in order to provide for herself and the two children .The original order was fair given that the husband could not be relied upon adequately to support the family, and neither the CMS nor the courts could realistically make him.

The award made to the wife shows that courts will take failure to support children seriously, and where capital assets are the only source of financial support for a spouse and children then a radical departure from equality may be required in order to meet their welfare needs. Perhaps it will act as a deterrent for those seeking to avoid their financial obligations, or as a useful precedent for spouses left behind trying to enforce maintenance from their recently emigrated exes.

If you would like to talk to us about the case, or any other aspect of family law, please give us a ring on 01223 443333 and make an appointment to see Gail, Simon, Adam, Sue or Tricia.