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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> MB v EB [2019] EWHC 1649 (Fam) (25 June 2019) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2019/1649.html Cite as: [2019] EWHC 1649 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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MB |
Applicant |
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- and – |
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EB |
Respondent |
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Mr N Cusworth QC (instructed by Payne Hicks Beach) for the Respondent wife
Hearing dates: 18th – 20th, 25th June
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Crown Copyright ©
The Honourable Mr Justice Cohen :
"I had to get away from you even by phone …
I care about you and I worry about you. I am not in love with you but I do love you.
I will no longer accept the way you treat me. I am not your toy or puppet.
You are so controlling towards me, and probably to most people".
And much later in the same long email he said this:
"I truly and genuinely thought you cared about me in your peculiar way, but I now see that this was a façade to keep going until you get what you want … your British citizenship. …
I hope you will see the error of your ways".
"I am claiming benefits and housing benefits while I am still married to a woman who now owns a flat in CG, has had builders and interior designers working on that flat for months, and also apparently gambles thousands of pounds every week.
In fact the solicitor informed me that not only could I be prosecuted but you could be prosecuted as well.
I have not disclosed the fact that I am married to an extremely wealthy woman to the DSS and you have full knowledge of the fact that I am receiving benefits and housing benefits and have allowed that situation to exist without any concerns for either my future well-being or indeed how this also affects your situation. It has been this way for over three years already. What you don't seem to understand is that you also want the benefits of being a British citizen …
He then went on to set out 2 options as follows:
i) We remain married. However, with the understanding that I cannot live with you as our needs are conflicting. I need the peace of a rural location to reduce the stress in my life to be able to paint and you need the high society lifestyle that you already have in London. But I need guaranteed security in the form of a property that is my base and that is in my name, so that I can gain an income from, by renting out rooms.
ii) Alternatively for me to be a legal British citizen and to remain on benefits supported by the government, you would leave me no other option than to divorce you. However, if this is the case my solicitor has said you would then have to disclose all of your assets to the British court and this would then need to be sworn under affidavit. If you fail to do that you will be heavily penalised by the court with the risk of imprisonment. Obviously this would mean that my claim as your spouse for a divorce settlement, considering the amount of time we have actually been married and the fact that I also curtailed my careers by your demands, could end up with you paying a considerable amount and possibly half of your assets, which is a lot more than what I am asking for, basically needing and at the very least am entitled to. In my case it would mean a heavy divorce settlement from you and you still not getting your British citizenship for a lot longer and with further costs. Plus the DSS would demand a recuperating payment for the time I've been on income support whilst we have been married and you have not been supporting me as my wife.
… I have loved you and still do, but just want you to recognise what are my rights."
"Our client has stressed he would like to resolve all the outstanding issues between the two of you as amicably and with as little acrimony as possible. We understand from him that despite the breakdown of your marriage the two of you still continue to enjoy a good relationship…
As far as financial matters are concerned our client is hopeful of reaching a settlement without having to resort to court proceedings … We understand that you are reluctant to get divorced at this point in time and if there is an agreement then it will not be necessary for our client to take any proceedings immediately."
"I was extremely distressed to read that (H) regards our marriage as broken down and has even contemplated the possibility of divorce proceedings.
(We) speak daily by telephone and have recently spent a great deal of time discussing what might form a reasonable basis for an agreement between us which would provide him with financial independence… (We) have now reached what we both believe to be an "in principle" agreement.
You will also be aware that despite the fact that we live separate and apart (we) see each other on a regular basis and continue to have genuine feelings of affection for each other as well as respecting each other's wish to live separate and apart. That said, we socialise together on a regular basis and remain firmly committed to each other."
"My apologies for the lapse of time in coming back to you on this matter I understand from my client that our respective clients have been speaking to each other with a view to reaching a final settlement" (emphasis added).
The letter went on to set out the terms that H proposed which were;
i) A lump sum of £240,000 to cover his housing needs;
ii) A lump sum of £50,000 in addition;
iii) A contribution to cover his costs of counselling and other treatment;
iv) He would undertake not to go to CG except with her consent;
"My client would be willing to accept the above in full and final settlement (emphasis added) but this is on a strict understanding that he does in fact manage to secure the flat in question" (which he was trying to purchase).
The reference to the award being in full and final settlement appears for the first time in this letter.
"Our client will issue divorce proceedings and will be applying in the course of the divorce proceedings for ancillary relief. Obviously we will be referring to the terms of the agreement in our application for ancillary relief but we will also be insisting on full disclosure by your client of her financial circumstances".
"As you know I cannot advise my client to sign the agreement in its current format as it provides him with no security of payment …
I understand that the date of the parties' marriage was 17th April 2000. The parties separated in 2004 when my client returned to England. Your client remained in Austria I believe. Your client subsequently came over to England in 2006 but I understand that they did not live together. My client is not able to provide a specific date of separation in 2004."
This is plainly a significant piece of correspondence.
"B. (W and H) have lived separate and apart and in separate households and in circumstances which they agree to be permanent since 2004 ("the date of separation").
D. (W and H) have each taken separate and independent legal advice on the provisions contained in this agreement.
It is therefore mutually agreed by the parties that:
1. (W and H) will continue to live separately and apart and in separate households.
2. ( W and H) acknowledge that the financial arrangements contained in this agreement are accepted in full and final satisfaction of all claims which each may be entitled to make for themselves against the other's income, capital, property or pension howsoever arising under the present or future laws of any jurisdiction including all or any rights that either party might otherwise have or arising from the application of the community or property law of any jurisdiction.
The agreement went on to recite that W would provide a sum of up to £245,000 for H to purchase a property of his choice and would pay a further lump sum of £35,000.
"Everything in my life has always been on your terms and if it served you. My life and wishes have been regarded as second to your life as if I was just an accessory to your life, to what you want and your demands. You cannot see how selfish you have been and how unequal our marriage has been and I think you never will.
I have tried to tell you several times now that I am not satisfied with our relationship and you just express that as ungratitude … it certainly has not been a relationship of mutual respect as a husband and wife … I did try to explain it to you that I was unhappy in our marriage a few weeks ago. You don't seem to understand. … I am not asking for a divorce. But what I do want is a separation and to no longer be considered as one of your possessions and have my life back without your demands and control.
I do love you but it has not been a healthy relationship … I love the boys Lucca and Lui and value every minute I am with them.
I am leaving. I don't know where yet but I don't want any contact with you over the next few weeks … They (Lucca and Lui) are like little children and still need me in their lives as much as I need them and I would love to continue having them in my life and look after them but you've made it that I cannot see them with equal rights, in the same way as you have made everything in our marriage."
I should explain that Lucca and Lui are miniature greyhounds acquired in 2015 and to whom the parties are plainly devoted.
"We have been legally separated for 5 years and under the Deed of Separation that we signed, we have no further claims on each other".
He said exactly the same thing in another letter on 7th February 2017. This was repeated in a text message on 30th July 2017.
This is the first issue for me to determine. I have already mentioned that throughout the marriage H has never had a key to W's properties except for the upstairs flat at Hove. W has never had a key to his flat. The time that they have spent together has always been limited.
What the court must be looking to identify is a time at which the relationship had acquired sufficient mutuality of commitment to equate to marriage. Of course in very many cases, possibly most cases, this will be very obviously marked by the parties' cohabitating, possibly in conjunction with the purchase of a property. However, in other cases, and this may be one of them, it is not easy to identify. The mere fact that parties begin to spend time in each other's homes does not of itself, it seems to me, equate to marriage. In situations such as this the court must look to an accumulation of markers of marriage which eventually will take the relationship over the threshold into a quasi-marital relationship which may then either be added to the marriage to establish a longer marriage or becomes a weightier factor as one of the circumstances of the case.
I can deal with this briefly and do so now before turning to the most difficult part of the case. There is no evidence of any marital acquest during the period up to 2004 or indeed afterwards. W has throughout been dependent upon her family.
H makes a full-frontal attack on the agreement and says that it is vitiated ab initio by:
i) Threats/duress; and/or
ii) Undue influence/pressure; and/or
iii) Abuse of dominant position.
In the alternative, H argues that it would be unfair to hold him to agreement because
i) The parties did not in fact separate (as the agreement contemplated);
ii) Holding H to the agreement would leave him in a predicament of real need.
Factors detracting from the weight to be accorded to the agreement
68. If an ante-nuptial agreement, or indeed a post-nuptial agreement, is to carry full weight, both the husband and wife must enter into it of their own free will, without undue influence or pressure, and informed of its implications. The third and fifth of the six safeguards proposed in the consultation document (see para 5 above) were designed to ensure this. Baron J applied these safeguards, found that they were not satisfied, and accorded the agreement reduced weight for this reason. The Court of Appeal did not consider that the circumstances in which the agreement was reached diminished the weight to be attached to it. In so far as the safeguards were not strictly satisfied, this was not material on the particular facts of this case.
69. The safeguards in the consultation document are designed to apply regardless of the circumstances of the particular case, in order to ensure, inter alia, that in all cases ante-nuptial contracts will not be binding unless they are freely concluded and properly informed. It is necessary to have black and white rules of this kind if agreements are otherwise to be binding. There is no need for them, however, in the current state of the law. The safeguards in the consultation document are likely to be highly relevant, but we consider that the Court of Appeal was correct in principle to ask whether there was any material lack of disclosure, information or advice. Sound legal advice is obviously desirable, for this will ensure that a party understands the implications of the agreement, and full disclosure of any assets owned by the other party may be necessary to ensure this. But if it is clear that a party is fully aware of the implications of an ante-nuptial agreement and indifferent to detailed particulars of the other party's assets, there is no need to accord the agreement reduced weight because he or she is unaware of those particulars. What is important is that each party should have all the information that is material to his or her decision, and that each party should intend that the agreement should govern the financial consequences of the marriage coming to an end.
70. It is, of course, important that each party should intend that the agreement should be effective. In the past it may not have been right to infer from the fact of the conclusion of the agreement that the parties intended it to take effect, for they may have been advised that such agreements were void under English law and likely to carry little or no weight. That will no longer be the case. As we have shown the courts have recently been according weight, sometimes even decisive weight, to ante-nuptial agreements and this judgment will confirm that they are right to do so. Thus in future it will be natural to infer that parties who enter into an ante-nuptial agreement to which English law is likely to be applied intend that effect should be given to it.
71. In relation to the circumstances attending the making of the nuptial agreement, this comment of Ormrod LJ in Edgar v Edgar at p 1417, although made about a separation agreement, is pertinent:
"It is not necessary in this connection to think in formal legal terms, such as misrepresentation or estoppel; all the circumstances as they affect each of two human beings must be considered in the complex relationship of marriage."
The first question will be whether any of the standard vitiating factors: duress, fraud or misrepresentation, is present. Even if the agreement does not have contractual force, those factors will negate any effect the agreement might otherwise have. But unconscionable conduct such as undue pressure (falling short of duress) will also be likely to eliminate the weight to be attached to the agreement, and other unworthy conduct, such as exploitation of a dominant position to secure an unfair advantage, would reduce or eliminate it.
72. The court may take into account a party's emotional state, and what pressures he or she was under to agree. But that again cannot be considered in isolation from what would have happened had he or she not been under those pressures. The circumstances of the parties at the time of the agreement will be relevant. Those will include such matters as their age and maturity, whether either or both had been married or been in long-term relationships before. For such couples their experience of previous relationships may explain the terms of the agreement, and may also show what they foresaw when they entered into the agreement. What may not be easily foreseeable for less mature couples may well be in contemplation of more mature couples. Another important factor may be whether the marriage would have gone ahead without an agreement, or without the terms which had been agreed. This may cut either way.
73. If the terms of the agreement are unfair from the start, this will reduce its weight, although this question will be subsumed in practice in the question of whether the agreement operates unfairly having regard to the circumstances prevailing at the time of the breakdown of the marriage.
Factors enhancing the weight to be accorded to the agreement; the foreign element …
Fairness
75. White v White and Miller v Miller establish that the overriding criterion to be applied in ancillary relief proceedings is that of fairness and identify the three strands of need, compensation and sharing that are relevant to the question of what is fair. If an ante-nuptial agreement deals with those matters in a way that the court might adopt absent such an agreement, there is no problem about giving effect to the agreement. 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. We would advance the following proposition, to be applied in the case of both ante- and post-nuptial agreements, in preference to that suggested by the Board in MacLeod:
"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 it would not be fair to hold the parties to their agreement."
76. That leaves outstanding the difficult question of the circumstances in which it will not be fair to hold the parties to their agreement. This will necessarily depend upon the facts of the particular case, and it would not be desirable to lay down rules that would fetter the flexibility that the court requires to reach a fair result. There is, however, some guidance that we believe that it is safe to give directed to the situation where there are no tainting circumstances attending the conclusion of the agreement. …
Autonomy
78. The reason why the court should give weight to a nuptial agreement is that there should be respect for individual autonomy. The court should accord respect to the decision of a married couple as to the manner in which their financial affairs should be regulated. It would be paternalistic and patronising to override their agreement simply on the basis that the court knows best. This is particularly true where the parties' agreement addresses existing circumstances and not merely the contingencies of an uncertain future. …
81. Of the three strands identified in White v White and Miller v Miller, it is the first two, needs and compensation, 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 partner 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. Equally if the devotion of one partner to looking after the family and the home has left the other free to accumulate wealth, it is likely to be unfair to hold the parties to an agreement that entitles the latter to retain all that he or she has earned.
82. 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 as to the regulation of their financial affairs in the circumstances that have come to pass. Thus it is in relation to the third strand, sharing, that the court will be most likely to make an order in the terms of the nuptial agreement in place of the order that it would otherwise have made.
83. So far as concerns the general approach of the court to ante-nuptial agreements, Wilson LJ at para 130 endorsed the following comments of Baron J at first instance
"111. I am certain that English courts are now much more ready to attribute the appropriate (and, in the right case, decisive) weight to an agreement as part of 'all the circumstances of case' [within the meaning of section 25(1) of the Act of 1973] ...
119. Upon divorce, when a party is seeking quantification of a claim for financial relief, it is the court that determines the result after applying the Act. The court grants the award and formulates the order with the parties' agreement being but one factor in the process and perhaps, in the right case, it being the most compelling factor ..."
We also would endorse these comments.
This letter was drafted with the assistance and advice of the solicitor who happened to be the brother-in-law of his then girlfriend Lynne.
(58) Lord Philips said legal advice is 'desirable' (but not essential) and that if it is clear to the court that the party understands the implications of the agreement and intended that the agreement should govern the financial consequences in the event of divorce, that is sufficient to give effect to the agreement.
H knew that W was well off; that she did not have to work for her very comfortable living in London and Monaco and came from a wealthy family. He did not need to know more.
I have been troubled at the presentation of H's needs throughout this period. It was he who fixed upon the provision of a property so that he could gain an income from renting out rooms at what became an agreed figure of £245,000. He ended up with a 2 bedroom flat in Hove, made into 3 bedrooms by using the lounge as a bedroom, with a garage which he has converted to provide him with a studio and very small flat. Self-evidently, the only income that he would have, as his benefits came to an end, would be what he received by way of rental. That puts to one side anything that he might achieve by way of sales of his artwork, which has been minimal.
To answer the question posed by Baker J (as he then was) in A v B (No 2) [2018] EWFC 45 what would the parties had said if they were asked in 2011 whether either had a claim left against the other, I find that they would have answered in the negative. That is a significant factor but not conclusive.
"Fairness" does not, in my judgment, require a court to ignore the precept upon which the parties have governed their affairs for over 20 years."
In the context of this case, that takes me to the fact that W has never made income provision for H. But that does not necessarily mean that the need is absent.
These parties have spent nearly £1 million between them on this litigation, a wholly disproportionate sum to what I find is at stake. It is desirable if I can bring matters to an end now. The difficulty that I am faced with is that of H's current financial position.
For my part I find it difficult to see why it is just and reasonable that an ex-husband should have to pay spousal maintenance or enhanced spousal maintenance by reference to factors which are not causally connected to the marriage, unless one is looking at the issue in a macro-economic utilitarian way and deciding that in such circumstances it is better that the ex-husband picks up the cost of the ex-wife's support rather than the hard-pressed taxpayer. This, again, is a matter of social policy. But I would suggest that in such a case spousal maintenance payment should only be awarded to alleviate significant hardship.
i) The marriage came to an end in the sense that the parties ceased to be in a marital partnership in 2004, but that the parties remained in an emotional and enmeshed relationship until 2016;ii) They entered into an agreement in 2011 and that H has no ground for vitiating that agreement save for a potential argument that it did not meet his needs;
iii) There was no marital acquest.