Husband ordered to pay over £700,000 to divorcing spouse pending withdrawal of legal action in Pakistan
A husband has been ordered to transfer over £700,000 to his wife in order to realise a fair and equal division of matrimonial assets between them in their divorce, but only after legal proceedings against him in Pakistan have been withdrawn.
The pursuer, ASA, instigated divorce proceedings against her husband, AZD, following their separation. In addition, she had ongoing legal actions against him in Pakistan. No orders were sought or required in respect of their three children, all of whom were over the age of 16 when proceedings commenced.
The case was heard in the Outer House of the Court of Session by Lady Wise.
Disputed separation date
The parties were married on 19 September 1994 after meeting at university. While both parties had been educated and resident in the UK for either all or most of their lives, they were of Pakistani ancestry and the defender owned some land and properties in Pakistan. Both were practising Muslims.
On the basis of the affidavit and oral evidence led previously in the case, Lady Wise was satisfied that the marriage had broken down irretrievably. Among the issues that remained at proof were the relevant date of the couple’s separation, the nature and value of the defender’s interest in a house in Pakistan and the distribution of the sale proceeds thereof.
The pursuer’s position was that the date of separation was 12 August 2017. Her evidence was that the defender abstained from physical contact with her by February or March 2017, and frequently left the matrimonial home for several weeks at a time. When the defender left the family home on 12 August 2017 he did not return until April 2018, at which time there was no proper reconciliation. She regarded this as the “final straw” marking their formal separation.
The defender’s evidence was that he left the matrimonial home in June 2016 and moved to accommodation in Glasgow near one of his dental practices. He accepted that he returned to the family home after that, but only to help his son with preparation for exams. Whilst they had gone on holiday after June 2016, he contended that they did so as a separated couple, albeit still married under Islamic law.
The valuation of several of the defender’s properties in Pakistan had been agreed. However, there was a dispute about his interest in a property, labelled the F house, in Islamabad and to what extent it was matrimonial property. The house had been sold after the couple separated for the equivalent of £583,561.
The pursuer proposed that the full amount of the sale should be included in the matrimonial balance sheet. The defender’s position was that he inherited a 2/13th share of the property following the death of his parents, and it had been transferred to him to sell it and distribute the proceeds in accordance with his parents’ wishes.
The pursuer contended that the defender had begun purchasing his siblings’ shares in the property by instalments, as well as paying for the construction of another house in the area, and that it was common knowledge that the house was intended to be a family home for them in Pakistan. Under cross examination, the defender seemed to acknowledge this, and accepted that bank statements from the account that the sale proceeds had been paid into did not correlate precisely to the stated sale price.
Following the sale of the F house, the pursuer lodged legal actions against her husband in Pakistan alleging fraudulent transactions via her brother, who had power of attorney for her there. The defender raised the fact that the pursuer’s brother had considerable influence in Pakistan and contended he was unlikely to secure a fair hearing there, and was likely to be further investigated by Pakistani authorities. The first action had been withdrawn by the pursuer following the discovery of errors in the writ, but a second action was ongoing.
Preferred evidence of the pursuer
In her opinion, Lady Wise concluded that the date on which the parties ceased to cohabit was 12 August 2017. She said: “While the marriage had been unhappy for some years and their relationship had been characterised by short periods of separation prior to that, the couple continued to live together as husband and wife between November 2016 and the summer of 2017. I accept ASA’s evidence that, given her beliefs, she would not have gone on holiday with her husband and shared a bedroom with him in July 2017 had they been separated.”
Regarding the disputed property in Pakistan, she said: “In light of AZD’s inconsistent evidence in relation to this valuable asset, the lack of supporting documentation and the undisputed evidence that as at the relevant date on 12 August 2017 he owned the property and sold it shortly afterwards, I prefer the account given by the pursuer. Her account is consistent with such documentation as there is before the court. I conclude that AZD acquired his siblings’ shares in the property by making instalment payments and by paying for the construction of the B House.”
She continued: “However, the pursuer’s suggested computation of matrimonial property takes no account of AZD’s direct inheritance of 2/13ths of the F house during the marriage, something that was not disputed. As property inherited by a spouse does not constitute matrimonial property and as he continued to hold his share of the title in the form inherited at the relevant date, I consider that the value of the portion of the title directly inherited by AZD should be deducted from the inclusion of this asset in the matrimonial balance sheet. Accordingly, the value of the F house insofar as representing matrimonial property was £493,783.”
Regarding the ongoing legal action in Pakistan, she said: “I conclude that AZD’s apprehension that, whatever the outcome of these proceedings, there is a risk that the pursuer will continue to litigate against him in Pakistan and pursue the [relevant authorities’] investigation into his affairs such that he will be unable to transact with his property there is reasonable.”
She continued: “I am satisfied that if those proceedings are not withdrawn the pursuer may receive both the financial provision to which she is entitled here and orders relating to land that has been taken into account in the calculation as being retained by her husband.”
Lady Wise concluded that, in the circumstances, it was reasonable to effect an equal division of value at the relevant date. The total net value of the matrimonial property at the relevant date of 12 August 2017 was calculated at £4,009,329, of which the pursuer held £1,300,191. Therefore, the defender was ordered to transfer to the pursuer the value of £704,473.
However, in light of the ongoing action in Pakistan, she said of the enforceability of the order: “I do not consider that the financial provision I will order should be enforceable until it is clear that all proceedings against AZD in Pakistan have been withdrawn. The fair division that I have sought to achieve would be disrupted were AZD to be deprived of any of his assets in Pakistan as a result of the proceedings taken against him there.”
© Scottish Legal News Ltd 2020