Ah (Petitioner) v Ph
| Jurisdiction | England & Wales |
| Judge | Mr Justice Moor |
| Judgment Date | 12 June 2013 |
| Neutral Citation | [2013] EWHC 3873 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD11D04679 |
| Date | 12 June 2013 |
[2013] EWHC 3873 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Moor
Case No: FD11D04679
Mr David Balcombe QC and Mr Stephen Trowell for the Petitioner
Mr Nicholas Cusworth QC and Mr Simon Webster for the Respondent
Hearing dates: 13th to 17th May 2013
I have been hearing an application by the Petitioner, (hereafter "the Wife") for financial remedies following the breakdown of her marriage to the Respondent (hereafter "the Husband").
The history of the marriage
The Husband was born in May 1980, so he is now just aged 33. He is a businessman. The Wife was born in October 1982, so she is 30 years of age. Prior to the marriage, she was a nurse. Recently, she has been working as a personal trainer.
Both parties are Scandinavian. They were born and grew up there. Indeed, they met at school. The Husband came to this country in approximately 2000 initially to study economics at University. On graduation, he spent a year abroad but he then returned to this country to work as a banker. He has remained in this country ever since. There is no doubt that the existence of a wealth tax in his Scandinavian country has been a relevant factor in his deciding to remain here rather than return to his country of birth.
The Husband comes from a very successful and wealthy family of business people. His grandfather established a successful company before the First World War. It floated on the Stock Exchange during the 1990s. The family realised their interest shortly thereafter and withdrew from the industry.
During the 1960s, the family commenced a separate business. This business was eventually listed in New York and the family have realised their interest in that entity as well.
On 31st March 2000, whilst he was at University, the Husband's Uncle gifted to him a very significant amount of capital, including shares in the family company. The Deed of Gift valued the assets at 374 million kroner. The shares were held by a company. At the time, the Deed indicated that the assets had been given to the Husband and his mother, but it appears that his mother was, in effect, acting as protector of the assets until the Husband's 30th birthday in 2010. The Deed states that the assets transferred are to remain the " separate property" of the Husband.
In January 2006, the Husband invited the Wife to move to this country. She had never lived here before. She gave up her work as a nurse and moved in with him in his rented accommodation in Knightsbridge. Cohabitation commenced and moved seamlessly into marriage. She did not work after she moved to this country.
In August 2006, the Husband purchased a two bedroom flat, 'F1' for £1,690,000. It seems that the purchase price was funded by a loan from a bank which was guaranteed by his mother. The completion statement, however, refers to a mortgage of (£1,023,750), which I assume was charged on the property.
The parties became engaged to be married in 2006. The wedding was planned for August 2007 but the parties discovered the Wife was pregnant in February 2007, so the wedding was advanced to June 2007.
The Marriage Settlement
It is common practice in the parties' country of origin to enter into a Marriage Settlement. I am satisfied that a significant number of the Husband's family entered such Settlements prior to their marriages, including his parents. The Husband indicated to the Wife that such a Settlement was required between them prior to their marriage. He contacted his family's solicitors, who also recommended a firm to the Wife. The Wife accepted the recommendation and was subsequently advised by Mr B. Both sets of solicitors practised in the parties' country of origin.
The Wife first spoke to Mr B on 11th April. Negotiations took place between the lawyers. The exact course that these negotiations took is not, in my view, material to this judgment save to say that the figure that was to be provided for the Wife as her separate property was agreed at a relatively early stage. The drafting, however, proved problematic. Some doubt was expressed by Mr B as early as 11th May as to whether a marriage settlement that regulated future assets/inheritance would be approved for registration in the marriage settlement registry. He clearly took the view that the wording could be changed to rectify the problem. Indeed, the wording was changed more than once by the Husband's solicitor.
It was not until the day before the wedding, 21st June 2007, that the Husband and Wife were able to attend Mr B's office to sign the Settlement. I am satisfied that the fact that it was signed the day before the marriage is, of itself, immaterial given that the terms had been agreed some time earlier. The Settlement was prepared on a standard "tick box" form. The parties elected partial separation of property. There was brief supplementary text, the material parts of which were as follows: —
" The following property shall be (the Wife's) separate property:
10,000,000 kroner of value in the following property 'F1' or whatever shall come to replace this property, irrespective of the form it may take.
The property was not acquired from funds received by (the Husband) with special joint property instructions from the donor or testator.
The separate property, the value of which is given above, shall be index-linked to the consumer price index published by the Central Office of Statistics or, if such index should cease to exist, by some corresponding index.
(The Wife's) separate property involves a gift from (the Husband) cf point III to be executed in the event of an apportionment on separation/divorce or death. This provision is also contained in (the Husband's) last will and testament.
The following property shall be (the Husband's) separate property
1. Shares in the family company
2. Everything which (the Husband) has received or may at some future time receive in the matter of inheritances, including advances on inheritances
3. The value over and above 10,000,000 kroner of the following property: 'F1'.
(The Husband) shall have the right to acquire the items of separate property mentioned above in the event of a division. In other words, (the Husband) shall have the right to have the flat mentioned under point 3, in such manner that (the Wife) is bought out in cash or by any other means.
Anything which replaces the items of separate property mentioned above shall be the parties' separate property."
It is agreed that the sum of 10,000,000 Kroner, which was broadly worth £850,000 at the time, was designed to enable the Wife to purchase a property in Scandinavia roughly equivalent to the home owned by her parents should the marriage break down. It follows that the Settlement was predicated on the basis that the Wife would be residing in Scandinavia. The Wife's evidence to me was clear. She had only agreed to live in this country for four years. She said that the parties had agreed that the children would be educated in Scandinavia. I accept her evidence in this regard. Indeed, although I find that the Husband did not share her commitment to a return there in four years, he knew that this was her position.
It is also relevant to note that the Settlement said nothing about maintenance, whether for the Wife herself or for their future children. In this regard, it is relevant to remember that she was pregnant at the time the Settlement was signed. The Husband had indicated in an email from his solicitor dated 13th June 2007 that he did not want " to tie up/limit his opportunities to dispose of the apartment…This must not be interpreted as reluctance toward wanting to offer the gift should the occasion arise…but due to business related considerations, he wants to have the most room for negotiation possible."
Immediately following the signing, the Wife's solicitor, Mr B wrote to the Husband's solicitors saying:-
" …(the Husband) has not to date had unrestricted funds that have made it easy to create a marriage settlement that is fully satisfactory from (the Wife's) perspective.
On this basis (the Husband and Wife) have agreed to draw up a new marriage settlement in two year's time with the purpose of securing (the Wife) more directly through a complete separate estate, through a gift from (the Husband).
(The Husband) also stated in the signing meeting that he was in the process of preparing and signing a will…"
On 26th June 2007, the Settlement was sent for registration. On 2 nd July, the document was denied registration. The problem appears to have centred around the reservation by the Husband of the right to retain the flat and buy out the Wife:-
" The asset arrangement is mandatorily (without exception) regulated. The divided property arrangement, second to last paragraph page 3, can thereby not be registered in a marriage settlement form 5".
The advocates were clear that the text could be amended relatively easily to make it capable of registration. A further draft was prepared in November 2007 but the Wife had just given birth to the parties' son. In consequence, signing a redrafted Settlement was clearly not a priority. In January 2008, there was a suggestion by Mr B that the property might be sold and, if so, whatever was acquired should go directly into the marriage settlement. It was suggested that the new document could be signed at Easter, when the parties returned to Scandinavia. By then, the Wife was pregnant again with the parties' second child. It appears that signing a fresh Settlement was " put on the back burner". There is no further correspondence between the solicitors and no further action was taken by either spouse.
The marriage
As already noted, the parties married in Scandinavia on 22nd June 2007....
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