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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Luckwell v Limata  EWHC 502 (Fam) (28 February 2014)
Cite as:  Fam Law 792,  2 FLR 168,  EWHC 502 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
(Sitting throughout in public)
| VICTORIA LEE LUCKWELL
|- and -
|FRANCESCO ALESSANDRO LIMATA
Lewis Marks QC and Miss Marina Faggionato (instructed by Charles Russell LLP) for the husband
Hearing dates: 10, 11, 12, 13, 14, 18, 19 February 2014
Crown Copyright ©
See also:  EWHC 536 (Fam) and  EWHC 1035 (Fam)
Mr Justice Holman:
The core issue
The public hearing
"(1) Proceedings to which these rules apply will be held in private, except
(a) where these rules or any other enactment provide otherwise;
(b) subject to any enactment, where the court directs otherwise "
The course of the proceedings and the lost opportunities to settle
i) Victoria herself was insistent upon it;
ii) Mike was also very determined that there should be one;
iii) But for the agreement, the marriage would never have taken place, even although Victoria was already pregnant. They might of course have continued to live together;
iv) When Frankie agreed its terms and signed it, he was a mature man (then aged 36). He was of normal intelligence (although he has few educational qualifications just two "O" levels). He was mentally stable. He knew exactly what he was signing and he meant what he was agreeing to. He was keen to demonstrate to Victoria and her family that he was marrying her for love and not for her money. At the time he had every intention of abiding by the agreement, although he did not imagine that they would ever actually separate or divorce. During the course of his oral evidence Mike said that even when Frankie signed the PMA (and the later Supplemental Agreements) he was "lying" because he did not intend, even at the time, to be bound by them. That is unfair to Frankie. He did intend at the time to be bound by them. He has more recently broken his promises.
v) Frankie had independent legal advice of the highest calibre. He saw and was advised by the late John Cornwell of the solicitors Dawson Cornwell. Frankie was very complimentary about John Cornwell during his oral evidence. I personally knew (professionally) John Cornwell (as I have also known the wife's solicitor, Ms Frances Hughes) for many years. Each of these parties was advised by family lawyers of the highest repute and great experience.
vi) Full and accurate financial disclosure was made and summarised in the agreement itself.
The terms and content of the PMA
"Victoria's separate property and Victoria's family gifts shall remain Victoria's. Francesco shall not either during or after the marriage make any claim in relation to Victoria's separate property or Victoria's family gifts and he hereby releases any and all rights or potential rights whether arising pursuant to the marriage or otherwise to Victoria's separate property or Victoria's family gifts, or any portion thereof."
"8. In the event of the dissolution of the marriage (or [permanent] separation ) Francesco will make reasonable maintenance provision for Victoria and the child(ren) in the context of all the circumstances prevailing at the time and on the specific understanding that Victoria will fully utilise her capital to house and support herself and the child(ren) and, in particular, will purchase housing appropriate to the marriage and the prevailing circumstances."
"Francesco expressed himself to me as understanding, and appeared to me as fully understanding, the said Agreement and the nature and effect of the said Agreement on and in the light of present and future circumstances, and as understanding my advice to him. He stated to me, and it appeared to me, that he entered into the said Agreement willingly and without any pressure, duress, stress, undue influence or deception on the part of any other person, including Victoria or otherwise.
I believe that upon entering into this Agreement Francesco was fully advised and informed with regard to all the foregoing matters and may fairly be said to have acted independently herein."
The marriage, Westbourne Terrace, the first Supplemental Agreement and Avonmore Road
The first Supplemental Agreement
Connaught Square and the Second Supplemental Agreement
The Second Supplemental Agreement
"Victoria intends to make a gift of approximately £600,000 to her brother Adam and may [my emphasis] make a further gift of £2 million to her father. These gifts will be funded by the cash at bank currently held by Victoria and from the sale proceeds of Avonmore Road."
The £2 million
2009 - 2011
"I did not say, as I gather Mary relayed, that Frankie was a 'profligate fortune hunter' and have never said that nor, more importantly, believed that. I believe he loves Victoria and that the feeling is mutual "
"Frankie mentioned to me, during our 90 minute call yesterday, [viz on 3 March] that one solution might be for me to just write a very large cheque to Victoria, big enough that Victoria and her family could, for the rest their lives, feel totally secure and be able to have a good life although he said that he was not necessarily pushing for that. I explained that I did not feel comfortable with his proposal. It does not seem sensible to put a virtually unlimited sum into an account to be administered by two people, one of whom is unwell and the other with no basic maths nor do I have the money to do that."
"After a period of having little direction, he gravitated towards the film business where he has been working since the age of 22 years old. Unfortunately, however, this has involved him, in more recent years, becoming enmeshed with businesses that are connected (directly or indirectly) with his father-in-law. My overall understanding of this situation is that this has not being particularly helpful for Frankie and has continued to undermine his self-confidence.
My overall impression of Frankie was that he probably suffers from deep-rooted personality difficulties, which have made it difficult for him to form meaningful relationships. This has been associated with recurrent symptoms of anxiety and depression. It is also probable that these symptoms have had a significant negative effect of his ability to focus and concentrate throughout much of his education and occupational life. On balance, I am of the opinion that a diagnosis at Attention Deficit Hyperactivity Disorder (ADHD) is improbable."
2012 2013, the separation and divorce
The parties' circumstances since February 2013
The parties' current income and assets
The threats to cease paying the allowances
"21. I became frustrated when I was continuing to pay the allowance to Victoria while Francesco was unemployed and did not obtain a new job. I understand that after I transferred Connaught Square to Victoria she and Francesco had several arguments about the promises Victoria had made to me. Francesco had asked Victoria on numerous occasions to sell the property in order to release capital so that they could enjoy a higher standard of living when he was unemployed. Victoria insisted that she could not sell the property because she was under a moral obligation to me not to sell or mortgage the property and that if she did, I would stop paying the children's school fees and her allowance. She knew that I meant it which is why she did not agree to sell, or even charge, the property. It remains in her sole name and unencumbered."
"23. I was alarmed to discover that Francesco is seeking a share of Victoria's assets. He always knew that in the event of a divorce, Victoria would seek to rely upon the Pre-Marital and Supplemental Agreements and yet he did not take any steps to save money, or secure new employment after he lost his job in April 2012 and he continued to have children with Victoria. I would never have transferred Connaught Square to her if I had known that there was any risk that the property would not be retained by Victoria for her and the children. I have made clear to Victoria, that if Connaught Square is sold or mortgaged in order to raise capital for Francesco as part of the divorce, I will stop paying the allowances to Victoria and I will stop paying the children's school fees. If Victoria is able to retain the property unencumbered, as was always intended by me and Victoria, I will continue to pay the children's school fees and I will continue to support Victoria by way of the allowance.
24. Finally, I understand that Francesco's solicitors have contended in correspondence with Victoria's solicitors that I will ultimately pay any settlement that is ordered to Francesco so that Victoria is not required to sell, mortgage or otherwise charge Connaught Square and can stay there with the children. That is absolutely absurd. I have made my position clear. I have no obligation to Francesco and I have no intention of paying him anything."
"The allowances were all part and parcel of the transfer of Connaught Square and would not have been paid, or continued to be paid, by Mike or me unless all the agreements had been entered into by Francesco and Victoria, Francesco had acknowledged them as binding which he did, and Victoria had promised not to sell or charge the property without Mike's agreement."
"I was present for a number of arguments between Victoria and Francesco. On several occasions, he wanted Victoria to sell the property and down grade to a less expensive, smaller house in order to release some capital so that they could fund a lifestyle which was above their means. Victoria insisted that she could not do so because she had made a promise to her father, which she felt morally obliged to stick to. Francesco became increasingly resentful and angry about Victoria's promise to Mike and tried to persuade her to beak it. Victoria, of course, was adamant that she could not. This issue caused a great deal of marital conflict between them and, as I say, I witnessed a number of arguments about it."
"I know that Victoria wants to keep the promise she has made to her father because she told me. I also have no doubt that Mike will stop paying the allowance and the school fees if she is forced to sell or charge Connaught Square to raise capital for Francesco. I have known Mike for many years. He is a very successful businessman. He would not have transferred Connaught Square to her if he did not trust Victoria to stick to her promise and he will be very cross if she breaches, whether or not out of choice, the promise she made. I have no doubt that in that scenario he will stop the allowance and the payment of school fees. I am obviously worried about the effect that would have on Victoria and the children. I may, or may not, keep paying her an allowance. I am not sure, however, how long I would be able to continue to pay an allowance to Victoria because I do not have the same financial means as Mike."
"19. Victoria's only source of income is allowances from Mike and me. In return for the allowance that I pay to her, Victoria helps me out with the development at MP. The development is a multi-million project. It involves a property on a large site in MP The project involves complex planning and legal matters. Victoria has had the benefit of training over many years from her father in these areas particularly in relation to legal matters. She has been a great help to me and carried out a lot of work on my behalf.
20. I do not pay Victoria for the assistance that she gives me She assists me with my work on the MP project in exchange for the allowance that I pay her of £30,000 per annum and, of course, in exchange for my assistance with the children. I see no reason why I should also pay her for the work she helps me with in relation to MP. Victoria is extremely grateful for my support and has always been keen to do what she can to help me in return."
Earnings and earning capacity
Matrimonial Causes Act 1973, section 25
"(1) It shall be the duty of the court in deciding whether to exercise its powers . and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.
(2) As regards the exercise of the powers of the court . in relation to a party to the marriage, the court shall in particular have regard to the following matters
(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
(c) the standard of living enjoyed by the family before the breakdown of the marriage;
(d) the age of each party to the marriage and the duration of the marriage;
(e) any physical or mental disability of either of the parties to the marriage;
(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
(h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit . which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring. "
MCA section 25(1) and the agreements
1. It is the court, and not the parties, that decides the ultimate question of what provision is to be made;
2. The over-arching criterion remains the search for 'fairness', in accordance with section 25 as explained by the House of Lords in Miller/McFarlane (i.e. needs, sharing and compensation). But an agreement is capable of altering what is fair, including in relation to 'need';
3. An agreement (assuming it is not 'impugned' for procedural unfairness, such as duress) should be given weight in that process, although that weight may be anything from slight to decisive in an appropriate case;
4. The weight to be given to an agreement may be enhanced or reduced by a variety of factors;
5. Effect should be given to an agreement that is entered into freely with full appreciation of the implications unless in the circumstances prevailing it would not be fair to hold the parties to that agreement. i.e. There is at least a burden on the husband to show that the agreement should not prevail;
6. Whether it will 'not be fair to hold the parties to the agreement' will necessarily depend on the facts, but some guidance can be given:
i) A nuptial agreement cannot be allowed to prejudice the reasonable requirements of any children;
ii) Respect for autonomy, including a decision as to the manner in which their financial affairs should be regulated, may be particularly relevant where the agreement addresses the existing circumstances and not merely the contingencies of an uncertain future;
iii) There is nothing inherently unfair in an agreement making provision dealing with existing non-marital property including anticipated future receipts, and there may be good objective justifications for it, such as obligations towards family members;
iv) The longer the marriage has lasted the more likely it is that events have rendered what might have seemed fair at the time of the making of the agreement unfair now, particularly if the position is not as envisaged;
v) It is unlikely to be fair that one party is left in a predicament of real need while the other has 'a sufficiency or more';
vi) Where each party is able to meet his or her needs, fairness may well not require a departure from the agreement.
Performing the balance
"The problem arises where the agreement makes provisions that conflict with what the court would otherwise consider to be the requirements of fairness. The fact of the agreement is capable of altering what is fair. It is an important factor to be weighed in the balance The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing [which clearly include the fact and content of the agreement] it would not be fair to hold the parties to their agreement. That leaves outstanding the difficult questions of the circumstance in which it will not be fair to hold the parties to their agreement."
" it is needs which can most readily render it unfair to hold the parties to an ante-nuptial agreement. The parties are unlikely to have intended that their ante-nuptial agreement should result, in the event of the marriage breaking up, in one party being left in a predicament of real need, while the other enjoys a sufficiency or more, and such a result is likely to render it unfair to hold the parties to their agreement Where, however, these considerations do not apply and each party is in a position to meet his or her needs, fairness may well not require a departure from their agreement "
" when considering the financial background of the parties, the standard of life that they and the children have been accustomed to, and that the children will undoubtedly continue to enjoy while living with [their mother], I am of the opinion that it is of importance to the children, to their enjoyment of their father's company and of their visits to him, as well as to the maintenance of good relations between them, that he too should have a settled and secure home to which they can come "
" it is of importance, albeit of lesser importance, that the other parent should have a home of his own where the children can enjoy their contact time with him in any case where there is the possibility of a division to enable both to rehouse themselves, that is an exceptionally important consideration "
Duration and terms
"The issue is whether this should all come to an abrupt end when the youngest child grows up Married parents are different, in that the court has power to make provision, not only for the child, but also for the parent. There is no reason in principle why the court should limit its support in the same way that it has to limit its support for the unmarried parent. Quite the reverse: this is what distinguishes marriage from cohabitation in our law. Where parents are married, the court can look beyond the needs of the child while growing up and look independently at the needs of the parent, and in particular those generated as a result of parenthood. Not only this, these days parents often expect to be a resource for their grown-up children, a base to which they can return and a source of the unconditional love and support which is what parenthood is all about."