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ANCILLARY RELIEF: Mubarak v Mubarik [2007] EWHC 220 (Fam)

Date:12 JAN 2007

(Family Division; Holman J; 12 January 2007)

Following very lengthy and costly litigation to enforce the court order awarding the wife a lump sum of £4,875,000, the wife applied, as alternatives: (i) to set aside, under Matrimonial Causes Act 1973, s 37, the husband's transfer of shares into the husband's Jersey trust; (ii) to set aside, also under s 37, the wife's exclusion from the trust; (iii) to vary the terms of the trust, as a post-nuptial settlement, under s 24(1)(c), so as to require the trustees to pay the wife an amount equal to the amounts now owed by the husband to the wife; and (iv) to correct the judge's original order under the slip rule.

The transfer of shares could not be set aside because the judge was not satisfied that the husband had made the transfer with the intention of defeating the wife's claim for financial relief. The instrument of exclusion from the trust was not a disposition for the purposes of s 37, and there was therefore no jurisdiction to set it aside. However, the judge granted the wife's third application, and made an order varying the terms of the trust as a post-nuptial settlement so as to empower and require the Jersey trustees to pay the wife what the husband owed her. On a proper construction of the original order, the court which made the original award had not disposed of the claim for, or declined for all time to exercise, the power to make a variation of the post-nuptial settlement. The discretion to do so would be exercised, notwithstanding the respect due to the jurisdiction of the Jersey court and the length of time since the original order, intended to be final. This was an exceptional case justifying departure from the general rules. The total failure of the husband to pay anything at all, coupled with the very adverse impact, not only on the wife, but also on the children, must predominate.