Dr Essam Aly, an Anaethetist, separated from his wife Enas, a GP, in 2011 and moved to Bahrain. The couple were married in 2002 and had two children prior to separation. Dr Aly has not paid any maintenance or child support since 2012. During his time in Bahrain, Dr Aly started a relationship with another woman and had an Islamic marriage ceremony with her and they had a child together. It was feared that Dr Aly would never support his ex-wife and two children again and therefore Family Court Judge Mark Rogers made a ruling that the entire £550,000 of the family assets should go to Enas. The Court of Appeal have recently upheld this decision and dismissed Dr Aly’s appeal.
Dr Aly’s barrister, Louise McCabe, argued at the appeal hearing that there was substantive unfairness in giving the wife 100% of the couple’s assets and she felt that the judgement failed to consider Dr Aly’s needs. Ms McCabe also referred to the fact that Dr Aly was hoping to return to the UK and had applied for jobs and had previously informed Enas he was willing to pay £40 per week support for each child.
This decision is an extraordinary departure from equality and in upholding the decision Lord Justice McFarlane questioned what else a judge should do when ‘faced with a serial defaulter, to make proper provision for this family?’ and referred to the fact the wife was looking after the children and the father had ‘washed his hands of them’. Lord Justice McFarlane felt that there was no realistic expectation of getting any further maintenance from Dr Aly as he was beyond the reach of enforcement of courts in this country and the welfare of the two children had to be of paramount consideration.
The Court of Appeal concluded that Enas should have the larger share, if not all, of the assets as she needed them to house herself in appropriate accommodation and make provision for the children of the family.
Although it is not unusual for there to be a departure from equality in financial proceedings an award of 100% of the matrimonial assets is very unusual. Lund Bennett Law have a great deal of experience in this area of law and have come across an ‘unusual’ case similar to that of Essam and Enas Aly. We previously acted for a woman whose former husband moved abroad and refused to engage in financial proceedings and failed to attend court hearings. There were no children of the family. In this case the court ordered the wife should have all the assets in the UK and those which were available abroad due to her former husband’s failure to engage in the court process. These cases demonstrate the flexibility of the family court and the discretionary powers which can be used to protect the interests of a disadvantaged party when dealing with, as Lord Justice McFarlane put it, a ‘serial defaulter’.
Our specialist team can advise on applications for financial provision and financial settlement upon separation. Consulting our specialist lawyers in our Altrincham or Manchester offices is a great first step. Please contact us on 0161 927 3118 for a free 20 minute consultation