Hammoud v Zawawi

Under Part III of the Matrimonial and Family Proceedings Act 1984, the court may grant financial relief where substantial connections with England and Wales exist and no adequate provision is available from the overseas divorce jurisdiction. The award is not confined to the minimum needed to avoid injustice, but must reflect the statutory factors and the connections with both jurisdictions. The court has a broad discretion. Where the foreign jurisdiction would provide little or no financial relief, that fact may limit the extent to which the case is treated as a purely English financial claim. In an appropriate case, relief should be needs-based rather than founded on sharing. Continuing maintenance may properly be replaced by capital provision where the payer’s record makes future compliance unreliable.

The applicant sought financial relief under Part III of the Matrimonial and Family Proceedings Act 1984 following the respondent’s unilateral divorce of her in Oman. The parties had lived in Oman for most of their twelve-year marriage but had moved to England with their children, who remained living and being educated there. The Omani divorce had been recognised as valid, and no adequate financial provision had been made in Oman.

The respondent, although aware of the hearing and able to participate, failed to attend, provide proper disclosure or comply with maintenance and costs orders. The central questions were whether an English order was appropriate, how the statutory factors should be applied, and the appropriate form and amount of financial relief for the applicant and the children.

1. Jurisdiction and appropriateness. The applicant satisfied the jurisdictional gateway under section 15(1)(b) of the Matrimonial and Family Proceedings Act 1984. The court was satisfied under section 16 that an order was appropriate. England and Wales had substantial connections with the family, and the Omani legal system offered no adequate provision for the applicant. Difficulty of enforcement was not a sufficient reason to refuse relief. Doing so would encourage overseas respondents to frustrate Part III proceedings by non-participation.
2. Guiding principles. Applying Agbaje v Agbaje [2010] UKSC 13, the court had to apply sections 16, 17 and 18 in light of the legislative purpose of alleviating the adverse consequences of inadequate foreign provision. The award was not restricted to the minimum required to overcome injustice. The welfare of the children was the first consideration; the award could not exceed what would have been available had the proceedings taken place in England; and, where possible, reasonable needs should be met.
3. The case was not to be treated as if it were purely English proceedings. The connections with Oman were at least as strong as those with England. Accordingly, the court gave weight to the fact that the marriage had been lawfully dissolved in Oman and that Omani law provided little or no financial relief. The English concept of sharing was inappropriate. Relief was principally needs-based, particularly since the husband’s wealth was largely inherited and any marital acquest was speculative.
4. Needs and form of award. The court adopted the approach to needs in FF v KF [2017] EWHC 1098 (Fam) and Juffali v Juffali [2016] EWHC 1684 (Fam). Needs were elastic and had to be assessed by reference to the children’s welfare, the length of the marriage, the period of future care, the marital standard of living, the applicant’s age and the available resources. A gradual reduction in the standard of living was appropriate. The applicant was awarded £21,110,000 and the children £2,965,000, including provision for housing, maintenance, debts, education and other needs.
5. Because the husband had repeatedly failed to pay maintenance and school fees, and had shown himself to be an unreliable payer, continuing obligations should be replaced by quantified capital payments. The total capital award was £24,075,000, on a clean-break basis.