Wife receives all capital on divorce

The Court of Appeal has upheld the decision of the lower Court that all of a couple’s £550,000 assets should be awarded to the wife.A recent Court of Appeal case has illustrated the wide discretion that the Court have on dealing with an application for financial relief on divorce or dissolution.

In this case, the Court of Appeal upheld the decision of the lower Court that all of a couple’s £550,000 assets should be awarded to the wife on the basis that the husband had abdicated responsibility for the wife and children. The husband, following separation, had moved to Bahrain and did not make any child maintenance payments to his wife in respect of their two children. The lower Court awarded to the wife the proceeds of sale of the former matrimonial home of £250,000 and all of the parties’ savings of £310,000.

Lord Justice McFarlane in the Court of Appeal said that the wife’s case was that he had effectively “abdicated from responsibility” for her and his children. He added: “Looking to the future, there is 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. The Judge had in front of him a case where he was entitled to hold that there was no realistic expectation of getting any further maintenance out of the husband.”

The Child Maintenance Service (formerly the Child Support Agency) would have had no jurisdiction to deal with this case because the husband was resident abroad. It was felt that the husband, who was described as “a serial defaulter”, would never again contribute payment to support his wife or their two children. The Court could have made an order for child maintenance as the Court retains jurisdiction to make orders for child maintenance where the Child Maintenance Service does not have jurisdiction but the Court felt that such an order would not be complied with and as the husband was residing in Bahrain it would almost impossible for the wife to seek to enforce any such order.

The husband’s lawyer described the order of the Court as “an extraordinary departure from equality”. On appeal, the husband’s barrister said that there was “substantive unfairness” in handing the wife all of the couple’s assets. Lord Justice McFarlane stated that the husband was “beyond the reach of enforcement of Courts in this country. He hasn’t been paying for the previous two years. The Judge was required, in determining the outcome of the financial provision proceedings, to give first consideration to the welfare of the two children. The wife was to have the sole responsibility and financial burden for bringing these children up. Thus it was that he awarded her a far more substantial lump sum than would otherwise have been the case if equality was the only yardstick.”

When dealing with applications for financial provision, the Court has to take into account the factors which are set out in Section 25 of the Matrimonial Causes Act 1973 and the Court is to give first consideration to the welfare of any dependent children of the family. Although this case is unusual it was not beyond the discretion of the Judge to make the order that he did which was subsequently upheld by the Court of Appeal. 

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