Barry McAlinden represented a Kuwaiti businessman in High Court family provision proceedings after an overseas divorce. This is the first reported case where jurisdiction was founded on section 15(1)(c) of the Matrimonial and Family Proceedings Act 1984.
The case also concerned a Trusts of Land and Appointment of Trustees Act 1996 [TOLATA] claim.
Barry’s client was the respondent in the consolidated proceedings under Part III of the Matrimonial and Family Proceedings Act 1984 and TOLATA brought by his former wife after a Kuwaiti divorce.
Background to the proceedings
Barry’s client, Dr Abdullah, and his ex-wife, Dr Aldoukhi, were registered joint owners of 3 multimillion pound properties in London.
However, they lived and worked in Kuwait and their 3 children were schooled there during their married life – albeit the family used 2 of the London properties during some holidays in the latter part of the marriage.
Legal issues
This was the first Matrimonial and Family Proceedings Act 1984 application where jurisdiction was based solely on section 15(1)(c), namely that:
“at the date of the application for leave, either or both of the parties had a beneficial interest in possession in a dwelling-house situated in England and Wales that was, at some time during the marriage, a matrimonial home of the parties to the marriage”.
Relief under that section is circumscribed by section 20 of the Matrimonial and Family Proceedings Act 1984.
The High Court had to consider:
- The extent of the parties’ beneficial interests in the 3 properties;
- The extent to which principles of equitable accounting applied and how those principles should apply to the facts of the case;
- Whether any or some of the properties were ‘matrimonial homes’;
- Whether and how to exercise the discretion to grant relief under Part III of the M&FPA 1984 in the light of the parties’ connection with England and Wales and that jurisdiction was based on section 15 (1) (c) as limited by section 20 of the Act;
- The scope, purpose and effect of 2 Kuwaiti power of attorneys and a further English one;
- The effect of a loan contract from a British Virgin Islands incorporated company (purportedly owed by the couple) to repay mortgages and how the liability should be treated under Part III when that husband was taken to be 100% shareholder of the company.
Barry was led in the case by James Ewins QC.
Read the judgment in Aldoukhi v Abdullah [2021] EWHC 3086 (Fam)