Her Royal Highness Haya Bint Al Hussein v His Highness Mohammed Bin Rashid Al Maktoum [2021] EWFC 94.

Nigel Dyer QC represented His Highness and Nicholas Cusworth QC and Nicholas Wilkinson represented Her Royal Highness in financial remedy proceedings

Background:

Moor J (“the judge”) dealt with three applications made by Her Royal Highness Princess Saya Bint Al Hussein (“HRH”), the daughter of the late King Hussein of Jordan, against His Highness Mohammed Bin Rashid Al Maktoum (“HH”), the Vice President and Prime Minister of the United Arab Emirates; its Minister of Defence and the Ruler of the Emirate of Dubai.

The applications were as follows:

For financial provision for the two children of the marriage, Jalila (now 14) and Zayed (now 10) (“the children”) pursuant to Schedule 1 of the Children Act 1989;
For financial provision following an overseas divorce, pursuant to Part III of the Matrimonial and Family Proceedings Act 1984;
For declarations as to the ownership of various horses, jewellery and the like, pursuant to the Married Women’s Property Act 1882.

In relation to the third application, HRH accepted that there were insurmountable hurdles in relation to a claim for individual horses. Even regarding items such as jewellery, she would never actually receive them, given it was HH’s position that he did not have them. Thus, HRH instead sought financial recompense for the losses she said she sustained in consequence of losing these items.

In relation to the Part III claim, HRH stated during proceedings that she was not intending to make a claim in her own right, other than for the costs of security for the rest of her life.

HH was 72. HRH was 47. The parties married on 10 April 2004 and HH divorced HRH on 7 February 2019 by talaq under Sharia law. On 8 May 2019, the divorce was registered with the Dubai Court, meaning it could be recognised in this jurisdiction. This was therefore an 18-year marriage.

On 29 April 2019, HH ceased funding HRH. On 28 October 2019, HH ceased paying allowances into the children’s bank accounts. Part of HRH’s case was that these allowances should be reinstated and capitalised on top of general child maintenance.

The judge refused to direct any disclosure by HH, on the basis that HH accepted that he was able to pay any order sought, fully capitalised as cash within three months of the court’s so ordering. HRH filed a detailed schedule of her assets. HRH’s overall resources, including beneficial interests under trusts shared with the children, were around £100 million, but most of this sum was held in two trust owned properties (one near Kensington Palace, London worth c. £95 million and the other at Castlewood House, Egham, worth £4.5 million). In terms of her personal resources, HRH’s net position as at 31 August 2020 was negative, to the tune of -£2,217,134.

Both parties relied on conduct. During the various proceedings, a number of very serious findings to the civil standard were made against HH including that HH constituted a grave risk to the security of HRH and the children; that he had covertly attempted to purchase a property situated adjacent to HRH’s Castlewood property in Egham; and that he was responsible for the hacking of the phones of HRH, her PA, and members of her legal and security team

Meanwhile, HH complained that HRH had used funds belonging to the children inappropriately for spending on herself e.g., on show jumping horses for the Olympic Games, to pay off blackmailers and on payments to her brother.

HRH and the children’s security costs were a preeminent issue. Director 1, HRH’s Head of Security, provided evidence in which he assessed the security threat as severe but stated that it could rise to critical, i.e., a serious threat to HRH’s life or the children being abducted.

The Law:

Schedule 1 of the Children Act 1989

The judge set out sections 1(2), 1(5), 3(2) and section 4, although noted that this claim had been largely “overtaken” by HRH’s Part III application [45]. He also referred to three points of law, namely:

The courts have repeatedly permitted a personal allowance for a caring parent in assessing the quantum of periodical payments orders;
The courts have repeatedly disapproved of the making of capital awards for children;
The normal convention is that a court does not capitalise periodical payments for children.

Part III of the MFPA 1984

The judge had clear jurisdiction to hear the case. He considered the factors set out at section 16(2) and sections 18(2) and (3). He noted that the clean break objective does not apply to orders for periodical payments for children; and that, absent exceptional circumstances, the overwhelming weight of authority was against capitalising such payments.

Issues

In sum, the judge had to determine:

The appropriate quantum of the security budget and children’s maintenance budget, and whether to capitalise both or either;
The children’s allowances and, if they were appropriate going forward, whether they should be capitalised;
HRH’s claim for a lump sum for herself: requiring the consideration of areas such as jewellery, haute couture, horses, legal fees and a future legal fees fund; as well as backdated maintenance and the security budget.

Held:

HH had not attended court, although he appeared by his lawyers. The judge therefore only received evidence from HRH and Director 1. Nevertheless, the judge considered HRH’s budget very carefully, “line by line”, whilst having a “very clear eye to the exceptional circumstances of the case [71].

The judge considered HH’s conduct to be “extremely relevant” [72]. HRH and the children required “water-tight” security. Most importantly, the main threat they faced was from HH himself, who had the “full weight of the State” available to him [72]. As such, HRH was entitled to control her own security budget and rely on HH to pay that budget. The position was very different for the children, as it was not possible to assess the threat they would face after they attained their independence [73].

As to HRH’s conduct, the judge stated that hers was not “conduct it would be inequitable to disregard” and she was to be trusted with a capitalised sum. However, the judge did conclude that the money provided by way of children’s allowances was actually part of an overall spending pot that HRH used, as had been her case, so the allowances could not now be converted into a capitalised savings pot for the children. Thus, that part of HRH’s claim failed.

The judge structured his award so that the security budget was capitalised for both HRH and the children during their dependency; the general children’s maintenance was paid via a secured periodical payments order; and a lump sum was paid to compensate HRH for the chattels she lost because of the ending of the marriage and to deal with other aspects, like the costs of litigation, which HH was to meet in full. Upon the children’s majority they would continue to receive ongoing periodical provision for their security under Schedule 1, indefinitely. In summary, the judge made the following award:

A lump sum to HRH of £251,500,000;
An education fund in the agreed sum of £3,040,000 to be held by accountants;
Secured periodical payments payable at the rate of £5,600,000 pa per child to HRH for the benefit of the children until they ceased full-time tertiary education or four years after they have commenced their first degree, whichever was later, whereupon the order would continue to be paid at the same rate as provision for the children’s security needs as adults, it being accepted by HH that special circumstances existed which justified the continuation of such payments indefinitely during the children’s adult lives. The payments would then be made direct to each child until further order - with the figures CPI-indexed and secured by an HSBC Bank Guarantee in the sum of £290 million;
Periodical payments from 9 December 2019 to the date of the order at the rate of £3,042,228 per child over and above the security budget, with credit for payments made. Arrears of £9,628,065 to be paid within one month.
No order as to costs.