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22 SEP 2008

ANCILLARY RELIEF: Ben Hashem v Al Shayif [2008] EWHC 2380 (Fam)

(Family Division; Munby J; 22 September 2008)

Although both the 'husband' and the 'wife' had known that the couple's marriage was bigamous at the time of the ceremony, at the end of the relationship the 'wife' sought ancillary relief from the court. The husband was resident in Saudi, and refused to participate meaningfully in the ancillary relief process. The wife argued that the English court could treat the property she had been living in, and another investment property, as beneficially owned by the 'husband', although legally owned by a family company whose shares were distributed between the 'husband' and his children. The company issued proceedings in the Chancery Division, seeking a possession order and declarations that the company owned the relevant property. The two sets of proceedings were consolidated.

The 'wife' had failed in her claim against the company and the children, except in as much as she had established that the company could not remove her from the property she was living in without giving her notice. Mubarak v Mubarak [2001] 1 FLR 673 was not authority for the proposition that impropriety was not an essential requirement of piercing the veil of incorporation. In all cases in which the court had been willing to pierce the veil, the company had been being used by its controller in an attempt to immunise himself from liability for some wrongdoing that existed entirely outside the company. However, the 'wife' had succeeded in her claim against the 'husband' for a lump sum of £7,061,570, including an order for the transfer to her of the husband's company loan account. She was entitled to ancillary relief even though the marriage had been bigamous; in this case the impact of the bigamy was marginal. Neither the 'husband' nor the 'wife' had been deceived as to the status of the marriage, and the contemporaneous religiouis marriage had been valid.

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