BN v MA
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Mostyn |
| Judgment Date | 10 December 2013 |
| Neutral Citation | [2013] EWHC 4250 (Fam) |
| Docket Number | Case No. FD13D04422 |
| Court | Family Division |
| Date | 10 December 2013 |
[2013] EWHC 4250 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. Justice Mostyn
(In Private)
Case No. FD13D04422
Mr. P. Marshall QC (instructed by Withers) appeared on behalf of the Applicant Wife.
Mr. B. Molyneux (instructed by Alexiou Fisher Philipps) appeared on behalf of the Respondent Husband.
This is an application for maintenance pending suit by a Wife mounted under s. 22 of the Matrimonial Causes Act 1973. In addition she seeks an order for interim periodical payments for the child of herself and the respondent, C, who was born in August 2005. That application is mounted under s. 23(1)(d) of the Matrimonial Causes Act and will only be a permissible application, given the terms of s. 44(1) of the Child Support Act 1981, if C or either of his parents is not habitually resident in this jurisdiction. In addition, she applies for an order for a costs allowance under s. 22ZA of the Matrimonial Causes Act 1973.
The facts of this case are unusual. The husband is 55 years old and was born in country P. The wife is 40 years old and was born in the Republic of Z. The parties met in 2001 and began a relationship in 2002. On any view, the relationship was then, and has always been, turbulent and it has, since its inception, been punctuated by separations brought about by ugly incidents in respect of which each party blames the other. However, in August 2005, as I have already mentioned, their son C was born, and he is eight years old and lives now with the wife as his primary carer in country S where he attends an international school.
Following the birth of C, again the relationship of the husband and the wife was on and off and up and down. Between 2006 and 2007 it is obvious they were not in full cohabitation but they were seeing each other periodically. They resumed a full, or fuller, relationship in 2007 and became engaged to be married in 2009. It was in that year that the wife in fact was studying abroad and obviously they were living in a relationship which was intermittent in terms of their common life together bearing in mind that the husband's work is in country P.
Following the engagement, a draft prenuptial agreement was produced by the husband's solicitors on 22 nd February 2010 and between then and May 2012 the agreement went back and forth, solicitors being involved. In the period immediately before 30 th May 2012 the agreement was, according to the husband, intensely negotiated, leading to the parties signing what is described as a "premarital agreement" on 30 th May 2012.
It is important that I identify some of the clauses in this agreement as I regard it as being highly influential in the determination of these interim applications which I have to decide today. On the very front of it there is headed in a large font — I think it is probably an 18 point font — "Importance Notice", and then it goes on to say,
"This agreement is intended to create legal contractual relations between MA and BN. It is intended to confirm their separate property interests and to be determinative of the division of their assets in the event of the breakdown of their marriage, annulment, judicial separation or divorce. [And then in upper case] DO NOT SIGN IT UNLESS YOU INTEND TO BE BOUND BY ITS TERMS. [Again in upper case] DO NOT SIGN IT UNLESS YOU HAVE INDEPENDENT LEGAL ADVICE WHICH YOU UNDERSTAND AND WITH WHICH YOU ARE SATISFIED".
The agreement itself runs to four pages of text and 34 clauses and there are appended to it two solicitor's certificates, which I will describe, and three appendices giving respectively disclosure of the assets and liabilities of the husband (that is Appendix A), the assets and income of the wife (Appendix B), and Appendix C, which is the provision to be made in the event of relationship breakdown, which I will describe a little later.
In clause 4 of the agreement it recites that the parties wished to enter into an agreement recording their wishes and intentions regarding their financial arrangements and in relation to financial provision for any children they may have. In clause 8 it recites that "the parties agree that the terms of the agreement reached between them contained herein shall be binding on them". In clause 10 it recites this,
"The parties acknowledge that this agreement constitutes the entire agreement between them and they have entered into this agreement without duress, undue influence or coercion of any kind, including the fact that they will be married very shortly and have not suffered from any inequality of bargaining power".
Clause 11 says,
"The parties have fully and frankly disclosed to each other their means and other relevant circumstances which are set out in Appendices A and B to this agreement. Each is satisfied with the disclosure of the other and has sufficient knowledge of the other's financial affairs to enable them to make this agreement. They acknowledge that there is a substantial disparity between their respective incomes and resources and that such disparity is likely to continue".
In clause 12 it says that the parties acknowledge that the terms of this agreement do not necessarily reflect the manner in which a court might resolve their financial claims against each other in the event that their marriage is dissolved. Then, by virtue of clause 21, it provides that the relationship breakdown will be defined as "divorce or annulment of the marriage, permanent separation or separation of the parties where one considers it to be permanent", and in that event, by virtue of clause 23, it states that in the event of this relationship breakdown,
"Neither party shall make any financial claim of any kind upon the other, nor upon the estate of the deceased [that is in the event of the marriage ending by virtue of death] save in accordance with the terms of this agreement, and the parties agree to incorporate the terms of this agreement, so far as may be relevant, into a consent order of the court".
At clause 24 it says,
"In the event of a separation, the husband will make the financial provision for the wife and any children of the family as set out in Appendix C to this agreement in full and final settlement of all claims which either the one may have against the other for capital or income or pension sharing arising out of the marriage whether under the provisions of the Matrimonial Causes Act 1973 or otherwise".
Then there is a proviso, which provides for a cap, which is that,
"The capital provision in all events is limited to 30 per cent of the total value of assets to which the husband is legally or beneficially entitled, including, by way of Trust interests, listed in the schedule to this agreement".
So it can be seen there that there is here clear reference to the husband having Trust interests, referred to on the face of the agreement.
I now turn to the solicitor's certificate of Sarah Whitten of Charles Russell, who was instructed on behalf of the wife. It says this,
"I am a duly qualified solicitor. Prior to the wife entering into the agreement between herself and the husband, to which this certificate is annexed, I have provided to the wife independent legal advice as to the following matters, (a) the effect of the agreement on her rights, (b) whether at the time my advice was given it was to her advantage, financially or otherwise, to enter into this agreement, and (c) whether at the time it was prudent for her to enter into the agreement, and (d) whether at that time, and in light of such circumstances which were reasonably foreseeable, the provisions of the agreement were fair and reasonable".
Appendix A sets out the assets of the husband. It sets out that he owns six properties, one in Z Street, London, a house in country E, a flat in country E, a house in country P, a flat in Y Street, London and a flat in, country S which was then described, the latter being a future sole property which the husband is under contract to purchase. He made it plain that in relation to the properties in London and the house in country E, that they were owned by YA Investments. He did not say by whom YA Investments was owned but it is reasonable to infer that they were part of a Trust arrangement having regard to the reference to Trust interests in clause 24 of the agreement.
It gave total net property assets of £13.08 million and in addition the husband disclosed that he had a share in the family business. He gave the estimated value of that as "unknown". He said that his business income, including bonus, was net £350,000 per annum. In addition he had rental income from his house in country P and flat in country E, around €40,000 per annum.
The wife gave details of her two flats that she owned in X Square, London, with values said to have been £250,000 each mortgaged 100 per cent at £250,000 in each case.
The provision provided for in Appendix C was different depending on the length of the relationship to its termination. If the relationship endured only less than two years then there was provision on a certain basis. The other three categories were two to nine years, ten to fifteen years, and fifteen years plus. For the less than two years category, which is the relevant one for my purposes, the husband agreed that he would procure the repayment, in other words the redemption, of the mortgages on the wife's two flats, and the extension of their leases to the maximum extent available in law. That redemption of the mortgages, it would seem, would cause the husband to have to find a capital payment of £528,000, and in...
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