Ben Hashem v Al Shayif
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 17 April 2009 |
| Neutral Citation | [2009] EWHC 864 (Fam),[2008] EWHC 2380 (Fam) |
| Docket Number | Case No: FD04D08191 |
| Court | Family Division |
| Date | 17 April 2009 |
[2008] EWHC 2380 (Fam)
Matters consolidated by Order of Mr Justice Bennett dated 20 November 2006
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mr Justice Munby
Case No: FD04D08191
Case No: FD06F01064 (previously HC06C01508)
Miss Judith Parker QC and Mr Christopher Wagstaffe (instructed by Osbornes) for the Applicant/Defendant
Miss Jane Evans-Gordon (instructed by Radcliffes Le Brasseur) for the Claimants/Second Respondent
The First Respondent/Part 20 Defendant was neither present nor represented but gave evidence by video-link on 14–15 April 2008
Hearing dates: 7–11, 14–18 April 2008
Further written submissions filed 29 April, 1 May 2008 and 12 May 2008
1. These are more than usually complicated ancillary relief proceedings which, in addition to all the issues which arise in any such case, raise interesting and important questions as to (i) the ambit of the doctrine which, under certain circumstances, permits the ‘piercing of the veil of incorporation’, (ii) the ambit and extent of the court's powers under section 24(1)(c) of the Matrimonial Causes Act 1973, and (iii) the impact, if any, of the fact that the ‘marriage’ was bigamous.
2. The case has been fought tenaciously, though with good humour on both sides, and with great skill and much learning, for which I am most grateful to counsel. Inevitably my judgment is somewhat lengthy. I am sorry that it has taken longer to finalise than I would have hoped.
The background
3. The litigation arises out of the civil marriage celebrated in London on 3 October 1998 between Abdulhadi Ali Shayif, who was born on 10 May 1948, and Faiza Ben Hashem, who was born on 15 June 1959. Their Islamic marriage took place on 25 November 1998. I shall refer to them for convenience as “the husband” and “the wife” respectively although their marriage, valid by the law of their religion, was declared by Bennett J on 17 October 2005 to be void, the husband being still married to another woman. The husband had previously been married three times, in 1965, in 1978 and in 1985. He had divorced his first and second wives (by talaq) in 1979 but was still married in 1998 to his third wife.
4. The husband's marriage to the wife finally broke down in July 2004 when they separated. Following the decree nisi pronounced by Bennett J on 17 October 2005 the husband registered a talaq divorce in Saudi Arabia on 22 October 2005.
5. Both the husband and the wife are Muslims who originate from the Yemen.
6. The husband has spent his entire adult life in Saudi Arabia, of which he became a citizen in 1982 and where he is domiciled and resident with a house in Jeddah. After a long and successful career in banking he rose to become, in 1999, the general manager of the National Commercial Bank of Saudi Arabia, one of the most prominent banks in the Middle East. He retired in September 2005. It is plain, not least from his own evidence, that he is well connected and highly thought of in Saudi Arabian financial and business circles. Since his retirement he has held positions on the bank's board of directors and executive committee. Information gathered by the wife – the husband has declined to file his Form E (see below) – indicates that he continues to have various interests in a number of projects in the Middle East. Thus, in addition to continuing to serve on the board of the bank, he has joined the boards of several large organisations in Saudi Arabia, including the Saudi Railway Organisation, the Saudi Cable Company, and the Federation of Arab Banks. It appears that he is also involved with – according to the wife he owns – various businesses including a real estate business and a business which supplies hospital equipment.
7. Prior to her marriage the wife had been working in this country, of which she is a naturalised citizen, as a landscape architect. Upon her marriage she gave up this work at the husband's request.
8. The husband has four children, who I shall refer to collectively as “the children”. Isam, born on 11 June 1970, Aliyah, born on 6 November 1972, and Abeer, born on 19 May 1976, are his children by his first marriage. Firas, born on 6 June 1988, is his son by his third marriage. The wife has no children.
9. Radfan Limited (“the Company”) was incorporated in Jersey on 1 July 1988. According to the husband and the children its shares are held – and held beneficially – as to 30% by the husband, 20% by Isam, 15% by Aliyah, 15% by Abeer and 20% by Firas.
10. At various times the Company has held a number of properties in this country (“the Properties”) which I shall refer to respectively as 64 St John's Wood Court, 215 The Quadrangle, 32 Forest House, 17 Kensington Heights and 57 Forest House. By and large the Properties were acquired as investments and rented out, though there were periods when they (or some of them) were used by the husband, the wife or the children whilst visiting, holidaying or staying in this country. The first three (64 St John's Wood Court, 215 The Quadrangle and 32 Forest House) have now been sold. The other two (17 Kensington Heights and 57 Forest House) are still held by the Company.
11. Following difficulties in the marriage, and in particular following an argument between the husband and the wife at the wedding of the husband's daughter in August 2000, the wife, who had previously been living with the husband predominantly in Saudi Arabia, where the main matrimonial home was, returned to this country. She says he sent her back; he says she ran away as a wilful and disobedient wife. Be that as it may, she forced her way into 17 Kensington Heights – having nowhere else to live – and changed the locks. She has been living there ever since. Although the marriage recovered, the wife remained based in this country, the husband in Saudi Arabia, though visiting her quite frequently and, when he did, staying with her at 17 Kensington Heights.
The proceedings
12. Following the breakdown of the marriage the wife issued divorce proceedings on 20 December 2004. The Company issued proceedings in the Chancery Division on 7 April 2006 seeking to make good its claim to 17 Kensington Heights and 57 Forest House. So, putting matters in a nutshell, the wife seeks ancillary relief from the husband; at the same time there is a dispute between the wife on the one side and the husband, the Company and the children on the other as to the true ownership of both the Company and the Properties.
13. There are therefore two matters before me:
i) First (“the ancillary relief proceedings”), there is the wife's application against the husband. The wife's petition, as I have said, was issued on 20 December 2004. She served her Form A at the same time.
ii) Secondly (“the Chancery proceedings”), there is an action by the Company and the children against the wife. The Company seeks declarations that 17 Kensington Heights and 57 Forest House are owned by the Company beneficially, an order for possession of 17 Kensington Heights and the usual consequential relief. The children seek a declaration that they are the beneficial holders of the shareholdings in the Company registered in their respective names. The Chancery proceedings were issued on 7 April 2006. The wife's defence and Part 20 claim were filed on 19 May 2006. Despite strenuous objection from the Company, the proceedings were transferred to the Family Division by Master Moncaster on 7 June 2006.
14. By order of Roderic Wood J dated 12 October 2006 the Company was joined as second respondent to the ancillary relief proceedings. By the same order Roderic Wood J injuncted the husband until final hearing or further order from disposing of his shares in the Company and the Company from disposing of or depleting the value of 17 Kensington Heights and 57 Forest House. (A similar order was obtained by the wife in the Royal Court of Jersey on 16 November 2006.) By an order made by Bennett J on 20 November 2006 the two sets of proceedings were consolidated. The consolidation order was not drawn in the form familiar in the Chancery Division (see, for example, Heward, Chancery Orders, 1986, page 95), hence the ungainly form of title above.
15. The history of the ancillary relief proceedings has been characterised throughout by the husband's failure – in truth, his adamant refusal – to engage in any meaningful way with the process. He has failed to comply with the relevant provisions of the Family Proceedings Rules 1991 and has disobeyed numerous orders of the court. He has never given proper disclosure. These are all topics which I must return to in greater detail below when I come to consider the husband's litigation misconduct and the inferences I can properly draw from it.
16. For the moment I merely record that on 8 February 2006 Bennett J made an order, backdated to the date of service of the petition on the husband, requiring him to pay the wife maintenance pending suit at the rate of £48,000 per annum. The same order required the husband to pay the wife's costs in the sum of £13,500 and (see A v A (Maintenance Pending Suit: Provision for Legal Fees) [2001] 1 FLR 377) a further £12,000 towards her future litigation costs. No payment has ever been made by the husband under that order and as at the date of the final hearing the maintenance arrears amounted to £156,000. So the total sums outstanding under that order amounted to £181,500. By a further order dated...
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