The Court of Appeal’s decision to order a hospital consultant to hand over 100% of his fortune to his former wife has been described by family lawyers as exceptional but fair given the circumstances.
Essam Aly, an anaesthetist who left his wife Enas Aly in 2011 and moved to Bahrain, has failed to pay any child support since 2012.
After it was feared that he would never again support his ex-wife and two children, family court judge Mark Rogers made a ruling that the entire £550,000 family assets should go to his ex-wife. The Court of Appeal upheld the award.
Emma Hatley, a partner at Stewarts Law, said the case serves as a ‘stark reminder’ that the distribution of wealth on divorce in England remains a highly discretionary area.
She said: ‘A departure from equality, to the extent of awarding all of the available resources to the wife, is an exceptional outcome, but it is a fair one where the husband was found to have effectively ‘abdicated responsibility’ for her and his children’.
Carmel Brown, a solicitor at Thomas Eggar, said that as Essam Aly was based in Bahrain, and therefore outside the jurisdiction of the Child Support Agency and the courts of England and Wales, it was necessary for the judge to make such an order.
‘The welfare of the children of the family are of paramount importance, and therefore, albeit a departure from equality, it was wholly necessary for the judge to use his discretion and an make an order in these terms.’
While it is not unusual for there to be a departure from equality, John Nicholson, a specialist divorce lawyer at Irwin Mitchell said, a 100% award was very unusual because even when one party has a higher earning capacity, they will still need some capital.
He said: ‘The court will try to reach a fair result in all circumstances. Here the facts were very extreme. The case demonstrates the flexibility of the family court to protect the interests of a disadvantaged part in the face of a serial defaulter.’
Marilyn Stowe, the senior partner at Stowe Family Law, said that often when assets are offshore, victories may be ‘completely hollow’ as orders are difficult to enforce: ‘Traditionally courts have been unlikely to make such an order, this is high time for it and hopefully will set an example to other lower courts and encourage them to consider not only making the order but how it is going to be paid.’