B v S
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 17 February 2012 |
| Neutral Citation | [2012] EWHC 265 (Fam) |
| Date | 17 February 2012 |
| Court | Family Division |
| Docket Number | Case No: FD09D06007 |
[2012] EWHC 265 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: FD09D06007
Mr Valentine Le Grice QC (instructed by Family Law in Partnership) for the Applicant
Mr S appeared in person as the Respondent
Hearing dates: 6 -14 February 2012
This is the approved anoymised version of this judgment. The anonymisation has been agreed between by the parties and approved by me. Among other things the nature and location of the husband's business has been obscured, and the names of the children changed.
This is my judgment on the claim by Mrs B ("W") for financial remedies following divorce against Mr S ("H"). Her Form A is dated 10 June 2010.
W was born in Spain on 13 May 1968 and is therefore 43. H was born in Country A to Country X parents on 30 January 1969, and is therefore 42. He has dual Country A-Country X nationality. H and W married in Spain (Catalonia) on 2 September 1995. There are two children of the family, Ruth who is twelve years old and Esther who is ten years old. Since June 2004 the family has lived permanently in England. The marriage foundered in February 2006 but H and W remained living under the same roof sharing domestic life until W brought divorce proceedings in December 2009 with Decree Nisi being pronounced on 30 July 2010. On 3 August 2010 W brought an application for leave to remove the children from England to live in Spain. That application was heard by Miss Recorder Ball QC in July 2011 and was dismissed.
W was represented by Mr Le Grice QC. H, who is intelligent and articulate, has represented himself both charmingly and competently, although perhaps not with the firmest of grips on all the nuances of the applicable principles.
The matrimonial property regime
An important issue in this case is the weight, if any, to be ascribed to an alleged tacit agreement by the parties to adopt a matrimonial regime of separate property made by them on their marriage in Catalonia on 2 September 1995, bolstered by an express separation of property agreement made by them in City A, Country A on 14 September 2000, which is governed by Country A's law, but which was plainly intended to deal with a specific property being bought in W's name at that time which would otherwise have been governed by the default Country A community of property regime. The reason I have described the first agreement as "tacit" is because almost uniquely among civil jurisdictions Catalonia has separate property as its default matrimonial property regime. (I say "almost uniquely" as Croatia has also been mentioned in this context).
In my judgment there is a marked difference between a negotiated pre-nuptial agreement which specifically contemplates divorce and which seeks to restrict or influence the exercise of discretion to which the law gives access, and an agreement made in a civil jurisdiction which adopts a particular marital property regime. The key features of a civil law marital property agreement are described exceptionally clearly, and in terms on which I cannot improve, in The Law Commission Consultation Paper No 198 "Marital Property Agreements" (11 January 2011). In para 4.6 it states:
"…the vast majority of European countries operate marital property regimes. These share three features. One is that they are systems of rules for the division of property on death, divorce or bankruptcy. That division is equal unless a couple have made it otherwise by contract. Another is that they are not concerned with what is usually referred to in the European context as maintenance, or income provision for spouses and children after divorce. The third is that they all involve the facility for couples to opt for a change of regime, before or after marriage, by contract."
The text then goes on in paras 4.7 – 4.15 to examine these features in detail which I attempt to summarise as follows:
i) Civil marital property regimes can be divided into two groups namely (i) immediate and (ii) deferred systems of community.
ii) Immediate community involves automatic joint ownership of the community property and liabilities from marriage onwards (e.g. the Netherlands). Deferred community of property means that the two spouses keep their separate ownership of property during marriage, but that on death, bankruptcy or divorce their property is pooled and regarded at that point as a community, which is then divided equally (e.g. Scandinavia).
iii) Within each group one can distinguish systems of total community from communities of acquests. In a system of total community, all the property of the couple is, generally speaking, jointly owned (e.g. Netherlands and Scandinavia). In a community of acquests, property acquired before marriage or by gift or inheritance afterwards is excluded from the community (e.g. France, and, up to a point, Germany).
iv) Thus one can see the great variety of default regimes in operation. In the Netherlands it is immediate and total; in Scandinavia it is deferred and total, in France it is immediate and acquests; in Germany it is deferred and acquests.
v) The regimes prescribed by law in civil countries do not proclaim themselves as the only fair solution. They are simply the arrangements that the law of any particular jurisdiction prescribes in the absence of any other arrangement made by a marital property agreement between the spouses.
vi) Generally speaking a marital property agreement is binding and there is little or no scope for the court to go behind it. Every country with a community regime allows a couple to contract into another regime. The range of choice of alternative regime differs from country to country; in France, for example, there is almost unrestricted choice, but that is not the case everywhere.
vii) There are a number of reasons, other than divorce, for contracting out of the default regime. An obvious example is (in a regime of immediate community) the avoidance of joint liability for debts where one of the parties runs his or her own business. Retirement may provide a reason for changing regime: a French couple, for example, may contract so as to change the proportions in which their property will be divided when the community is brought to an end by death, for example by providing that the survivor will take the whole of the other's property. Where the default regime is a system of total community couple may contract into a regime of community of acquests, so that any pre-acquired property is kept out of the community. It is also possible in some systems for a gift to one member of a couple to be kept outside the community if the giver so specifies.
viii) Germany apart, civil law marital property agreements cannot concern maintenance. Entitlement to maintenance varies from country to country in terms of the level of periodical payments available and the period for which they can be paid. Maintenance is the provision of income although in some jurisdictions a capital payment is available by way of compensation for losses sustained as a result of the marriage (e.g. France, Belgium and Spain). Only Germany allows couples to deal with maintenance by contract. The rest set a clear demarcation between the couple's property regime – which is determined by default or by contract – and the availability of maintenance, which cannot be the subject of contract.
The paper concludes its analysis of the civil law systems in these terms (at para 5.38):
"The European analogy is flawed, as will be clear from a reading of Part 4, because agreements in those jurisdictions are made against the background of a default matrimonial property regime and operate as a choice to adopt another regime. We have no equivalent of immediate community of property, such as is the default regime in France or the Netherlands for example, or of deferred community such as that of the Scandinavian countries. In none of these cases is anyone opting out of a discretionary regime and into certainty; instead, they are opting for different sets of rules."
It can therefore be seen that a civil law matrimonial property agreement is different in character and objective to a "common law" pre-nuptial agreement which seeks to abrogate or influence the right to invoke a statutory discretion to redistribute fairly (or equitably) all the resources of the spouses following their divorce.
Unsurprisingly, given the diversity of different default regimes, and the variations in the rights to make by contract different agreements, the European Commission has embarked on a project of harmonisation. Thus on 16 March 2011 a proposal was advanced for a Council Regulation on "jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes". This would allow spouses to choose the law applicable to all the property covered by their matrimonial property regime, regardless of the nature or location of the property. Where no applicable law is chosen the Regulation would introduce harmonised conflict-of-laws rules to establish the applicable law a on the basis of a scale of connecting factors. The first criterion would be the first common habitual residence of the spouses after marriage; the second, the law of the spouses' common nationality at the time of their marriage; the third, the State with which the spouses have the closest links. Once the applicable law is established, this will apply even if it is not the law of a Member State in which the dispute is being heard.
It is important to note that the UK is not participating...
To continue reading
Request your trial
-
BN v MA
...attempted to summarise the principles in my decisions of Kremen v Agrest No. 11 [2012] EWHC 45 (Fam) [2012] 2 FLR 414 and B v S [2012] EWHC 265 (Fam) [2012] 2 FLR 5012. In Granatino v Radmacher the Supreme Court analysed very closely the nature of nuptial agreements. They pointed out that n......
-
Ah (Petitioner) v Ph
...including my own decision of Z v Z (No2) [2011] EWHC 2878; [2012] 1 FLR 1100, the decision of Mostyn J in B v S [2012] EWHC 265; [2012] 2 FLR 502 and Eleanor King J in GS v L [2011] EWHC 1759; [2013] 1 FLR 301. 50 It goes without saying that any such agreement will be vitiated by duress, ......
-
Camilla Eva Carin Versteegh v Gerard Mikael Versteegh
...have a causative element: [2009] EWCA Civ 649, [2009] 2 FLR 1181 at [141]. 181 In B v S (Financial Remedy: Marital Property Regime) [2012] EWHC 265 (Fam); [2012] 2 FLR 502 the husband and wife married in Catalonia in September 1995, at which time they entered into a PMA. The default regi......
-
XW v XH (no 1)
...AH v PH (Scandinavian marriage settlement)[2013] EWHC 3873 (Fam), [2014] 2 FLR 251. B v S (financial remedy: marital property regime)[2012] EWHC 265 (Fam), [2012] 2 FCR 335, [2012] 2 FLR 502. C v C[2007] EWHC 2033 (Fam), [2009] 1 FLR 8. Chai v Peng[2017] EWHC 792 (Fam), [2017] 3 FCR 29, [20......
-
In What Circumstances Will Parties Be Held To Marital Agreements
...of the husband's assets. The Court recognised the importance of the principle of autonomy. In both Z v Z and the further case, B v S [2012] EWHC 265 (Fam), the agreements were European marital property agreements as opposed to a negotiated pre-nuptial agreements and this influenced the Cour......