Defaulters beware: you’re in for a scare24 Jul 2015
The case of Mr and Mrs Aly hit the headlines last week when HHJ Mark Rogers ordered Mr Aly to hand his family’s entire fortune (£550,000) over to his ex-wife following their divorce. This ruling has shocked many, as it is so far removed from the distinguished ‘yardstick of equality’ concept that was introduced by Lord Nicholls in White v White*.
The basis of this theory is that, when dealing with financial division following divorce, the starting point should be to consider an equal distribution between the spouses. Whilst a slight departure from equality would not have raised eyebrows, digression from 50% to 100% is truly remarkable.
So how did the court reach such a decision? Firstly, we must look at the facts surrounding the case. Mr Aly is a 54-year-old anaesthetist whilst Mrs Aly, 46, is a GP. Therefore, it is likely that the court accepted they had both made equal contributions during their marriage of significant length (nine years). It is also likely that both spouses became accustomed to a similar standard of living during their marriage and that through continuing to work they would both be able to remain leading comfortable lifestyles.
The above facts suggest that the yardstick of equality would have been the perfect method by which to distribute matrimonial assets; however, the court assessed the behaviour of Mr Aly following the divorce and reached their decision on the basis that he had ‘abdicated responsibility’ of his ex-wife and children. In 2012, a year after the couple had divorced, Mr Aly left the UK and moved to Bahrain, where he formed a new relationship and fathered another child. Having been married to Mrs Aly for nine years and having had two children with her, Mr Aly left the country and stopped paying maintenance and child support to the family he left behind.
Mr Aly’s lawyers argued that the ruling was unfair, as it gave no consideration to his needs. They professed that, moving forward, he would be willing to pay £40 child support per week. Unfortunately for Mr Aly, however, it was a case of too little too late. A promise to start making payments was clearly too difficult to believe coming from a man that had not made a single contribution for several years. This, in addition to the fact that the Child Maintenance Service (CMS) would not be able to pursue Mr Aly whilst he lives abroad, means that his promise carried little weight. As Lord Justice McFarlane explained: “There is no realistic expectation of getting any further amount of maintenance out of the husband.”
The court have seemingly used the case of Mr and Mrs Aly to highlight the significant responsibilities attached to marriage – responsibilities that can often continue long after a marriage has ended. Rather than being seen as a flippant activity that can be undone at the flick of a switch, the case shows that marriage is serious commitment and anyone who thinks that they can up and leave their responsibilities behind once a marriage is over, now stands corrected.
Perhaps the case also highlights the growing importance of prenuptial agreements in today’s society. In an age where there is seemingly a misunderstanding about post-divorce responsibility, a prenuptial agreement would allow both spouses to have a clear understanding of what they can expect to receive in the event of divorce. Of course, pre-nuptial agreements will not allow one parent to abdicate responsibility in relation to their children. Such matters are considered to be public policy issues and therefore no agreement can permit non-payment towards a child. This in itself shows the importance of child maintenance payments, and therefore if someone is willing to forgo making such payments for their children and they are not within reach of the CMS, then the courts may have no option but to transfer a substantial portion of the matrimonial assets to the caregiver to ensure that the child’s welfare is secure. Defaulters, you have been warned.
* UKHL 54
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