The joy of Achraf Hakimi, the wealthy footballer who had divorced his wife and claiming to be poor because all his earnings were being diverted to his mother’s account would be short lived under the equitable English Legal System.
It’s a settled law that earnings during matrimony belonged to the couple, hence the right and entitlement of parties to equitable Sharing during divorce subsists.
What played out in the divorce proceedings of Hakim and his partner where the husband’s mother was holding property and incomes of the husband in a subsisting marriage to the benefit of the husband only is purely criminal because It amounts to concealment in law.
In Prest (Appellant) v Petrodel Resources Limited and others (Respondents) 2013.
This was a case where a Nigerian millionaire businessman was trying to prevent his ex wife sharing his wealth with him by concealing the wealth in a limited liability company and the Supreme Court stepped in to protect the wife and accorded her her rights.
LADY HALE (with whom Lord Wilson agrees) had these to submit:
I agree that this appeal should succeed, on the basis that the properties in question were held by the respondent companies on trust for the husband. As he is beneficially entitled to them, they fall within the scope of the court’s power to make transfer of property orders under section 24(1)(a) of the Matrimonial Causes Act 1973. It also means that the court has power to order that the companies, as bare trustees, transfer these properties to the wife.
The reasons for holding that these properties were beneficially owned by the husband have been amply explained by Lord Sumption. I would only emphasise the special nature of proceedings for financial relief and property adjustment under the Matrimonial Causes Act, which he explains in para 45. There is a public interest in spouses making proper provision for one another, both during and after their marriage, in particular when there are children to be cared for and educated, but also for all the other reasons explored in cases such as Miller v Miller [2006] UKHL 24, [2006] 2 AC 618. This means that the court’s role is an inquisitorial one.
It also means that the parties have a duty, not only to one another but also to the court, to make full and frank disclosure of all the material facts which are relevant to the exercise of the court’s powers, including of course their resources: see Livesey (formerly Jenkins) v Jenkins [1985] AC 424. If they do not do so, the court is entitled to draw such inferences as can properly be drawn from all the available material, including what has been disclosed, judicial experience of what is likely to be being concealed and the inherent probabilities, in deciding what the facts are.
I also agree, for the reasons given by Lord Sumption, that section 24(1)(a) does not give the court power to order a spouse to transfer property to which he is not in law entitled. The words “entitled, either in possession or reversion” refer to a right recognised by the law of property. This is clear, not only from the statutory language, but also from the statutory history.
. The words “entitled to any property either in possession or reversion” first appeared in the Matrimonial Causes Act 1857, which introduced judicial divorce to the law of England and Wales. Section 45 gave the court power, when granting a decree of divorce on the ground of the wife’s adultery, to settle such property for the benefit of the husband and/or the children of the marriage. The same words were used in section 3 of the Matrimonial Causes Act 1884, when extending the same power to a husband’s application for restitution of conjugal rights. They were carried through, respectively, into section 191(1) and (2) of the Supreme Court of Judicature (Consolidation) Act 1925, then into section 24(1) and (2) of the Matrimonial Causes Act 1950, then into sections 17(2) and 21(3) of the Matrimonial Causes Act 1965. The decree of restitution of conjugal rights was abolished in the comprehensive package of matrimonial law reforms which came into force on 1 January 1971.
That package included, in section 4(a) of the Matrimonial Proceedings and Property Act 1970, the power to order either spouse to transfer to the other “property to which the first-mentioned party is entitled, either in possession or reversion”. This was an expansion, for the benefit of either spouse and to outright transfer as well as settlement, of the earlier power to settle the wife’s property. Section 4(a) later became section 24(1)(a) of the Matrimonial causes 1973.
He who goes to equity must go with clean hands.
Dr George Ogunjimi Bsc,LLB, LLM, BL PhD, Dip, Journalism, Ch. Inst of Arbitration.
Partner, Juris Republic
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