In Scotland, when a person raises an action for divorce, they can apply for financial provision. The Courts will firstly consider the main principle that the net value of the matrimonial property should be shared fairly. A fair share is usually an equal share. However, there are special circumstances where matrimonial property will not be divided equally. In a recent case in England, the Court ruled that 100% of the assets were to be paid to the wife:
Dr Essam Aly left his wife, Enas Aly, and their two children in 2011. The parties had married in 2002. Following separation, Dr Aly moved to Bahrain. He commenced a new relationship, undertook an Islamic marriage ceremony and had another child. In 2014 Birmingham Family Court awarded Mrs Aly the entire proceeds of sale of their £250,000 home and an additional £310,000 which was money held in bank accounts. Dr Aly appealed. He claimed this was “substantive unfairness”.
The Court of Appeal in July 2015 dismissed Dr Aly’s appeal. Dr Aly was described as a “serial defaulter”. Dr Aly had not paid any child maintenance following separation in 2011. He was out of reach of both the English Courts and the Child Support Agency. Birmingham Family Court had ordered the family’s entire estate should go to the wife. The Court of Appeal upheld that decision.
The decision of the Court of Appeal is very unusual. However, it highlights the discretion of the Courts in making such orders. In Scotland, the Courts will consider special circumstances, if applicable, including any economic advantage or disadvantage suffered by either party and the cost of caring for children under the age of 16 years. This recent decision also indicates the complexities of divorce. At Drummond Miller we take time to consider every aspect of your case to ensure you receive a financial settlement that is fair and reasonable. We will guide you through the process of financial provision on divorce from start to finish.
The Drummond Miller Family Law Team is extremely experienced in dealing with all aspects of Family Law including financial matters and issues regarding contact and residence of children on separation and divorce. If you would like further information and advice please get in touch with our experienced Family Law Solicitors in Edinburgh, Dalkeith, Musselburgh and Bathgate.