A Lord Justice of Appeal has emphasised the primacy of the principle of equality in the division of assets in divorce cases over conflicting principles of Sharia law.
In some traditional Muslim societies there is no expectation that an ex-husband will pay maintenance to his former wife and it is often the case that the latter has to look to her extended family for support.
However, in refusing a Muslim ex-husband permission to appeal against an order that he pay £60,000 maintenance to his former wife, Lord Justice Ward upheld the general principle of English law that, in most cases, marital assets are equally divided on divorce.
The ex-husband had argued that he had stopped paying maintenance because his former wife ‘didn't need the money’, having inherited £250,000 from her father.
However, Lord Justice Ward said that the ex-husband had been found by a family court to be ‘determined not to pay’ because ‘he felt the payments were illegitimate or illegal according to Islamic culture and that he was not going to make them.’
The judge told the ex-husband: ‘The rule in this country is that you share and the starting point is equal division. You came out of the marriage without having made your wife any substantial capital payment.
‘The judge found that you had not made payments under the order and you were determined not to pay. The judge was satisfied that you had no intention of paying. When two parties give accounts of why monies were not paid and a judge believes one of them, it is very rare for the Court of Appeal to interfere.
‘The misfortune for this unfortunate ex-husband is that the judge believed the wife. There is very little this court can do to alter that. The starting point of any division of capital is that one starts from a position of equality.
‘After a marriage which lasted a reasonably long time and during which the wife cared for the two children, not pursuing any career of her own, the starting point ordinarily would be to divide the marital assets.
‘She may have felt for religious reasons that she should not accept a lump sum. The husband has kept the whole of the capital in the marital home and the wife has not received any of it.
‘In those circumstances, the order for spousal maintenance was a perfectly proper and fair order to make. The husband has to try to understand that inherited wealth is not available for distribution especially when it comes in after, or shortly before, the breakdown of the marriage.
‘That would not reduce the husband's obligation to make a proper contribution to his wife. The judge's order cannot be shown to be wrong,’ Lord Justice Ward concluded.