Al-Baker v Al-Baker

In financial remedy proceedings, a party’s failure to give full, frank and clear disclosure may justify adverse inferences. Those inferences must be properly drawn, reasonable and founded on admissible evidence. The court should make a realistic estimate of undisclosed resources, using direct evidence first and then business activity and lifestyle. It must avoid both speculation and a result that rewards non-disclosure.

The same approach applies to a claim under Part III of the Matrimonial and Family Proceedings Act 1984. After a long marriage, assets generated during the marriage ordinarily fall within the sharing claim. A final lump-sum order under Part III is not treated as a maintenance order capable of variation.

The wife sought financial relief under Part III of the Matrimonial and Family Proceedings Act 1984 following a talaq divorce in the United Arab Emirates. The parties had been married for 46 years and had lived in several jurisdictions. The husband had also issued divorce proceedings in Portugal.

The husband did not comply with disclosure orders, did not pay maintenance pending suit or a legal services payment order, and did not attend or participate through representation at the final hearing. The central issues were the extent of the matrimonial assets, the effect of his non-disclosure, the wife’s entitlement, and the final relief appropriate under Part III.

1. Adverse inferences. The court applied the principles identified in NG v SG (Appeal: Non-Disclosure) [2011] EWHC 3270 (Fam). Where disclosure is materially deficient, the court must consider whether funds have been hidden. Any inference must be properly drawn, reasonable and based on admissible evidence. The court must not infer assets which the evidence shows the party does not possess.
2. Quantification. If hidden funds are found, the court should attempt a realistic and reasonable broad quantification. It should consider direct documentary evidence, the scale of business activities and lifestyle. The wife’s evidence of the parties’ lifestyle supported the conclusion that substantial assets existed, but the court scrutinised each asset and preferred reliable evidence supplied by the husband where available.
3. Part III relief. The fact that the claim arose under Part III rather than under the Matrimonial Causes Act 1973 made no appreciable difference to the approach. The wife was treated as a claimant to whom the ordinary principles of financial remedy law applied. The court concluded that the assets were matrimonial and that, after a 46-year marriage, the wife had a sharing claim extending to one half of the assets.
4. Outcome. The court assessed total assets at £129,595,687 and the wife’s half share at £64,797,844. After crediting specified properties and adding arrears of maintenance pending suit and the legal services payment order, the final lump sum was £61,559,339. The order was final, not variable as a maintenance order. The husband was treated as having submitted to the Part III jurisdiction and as having been afforded a proper opportunity to be heard. The wife was permitted to rely on the judgment and order in foreign enforcement proceedings.