G v G (Financial Provision: Separation Agreement)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,MR. JUSTICE WRIGHT,THE PRESIDENT |
| Judgment Date | 28 June 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0628-12 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 2000/0259/B1 |
| Date | 28 June 2000 |
[2000] EWCA Civ J0628-12
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR. JUSTICE CONNELL)
Royal Courts of Justice
Strand
London WC2
The President
(Dame Elizabeth Butler-sloss)
Lord Justice Thorpe
Mr. Justice Wright
2000/0259/B1
MR. M. POINTER Q.C. and MISS S. STAITE (Instructed by Messrs. Watson Neville, Maidstone) on behalf of the Applicant (Husband).
MR. P. CHAMBERLAYNE (Instructed by Messrs. Max Barford & Co., Tonbridge TN9 1BB) appeared on behalf of the Respondent (Wife).
( )
Wednesday, 28th June 2000
: In this appeal the husband challenges an award of £240,000 made by Connell J. in favour of his former wife. That award was the subject of a judgment handed down on 18th February following a trial which lasted some five days at the beginning of that month.
The husband is 63 and the wife is 44. They had each had previous marriages. The husband had two children by his first marriage and the wife also had two children of her first marriage. Between the breakdown of the husband's first marriage and his meeting with the wife, he had co-habited with Diane Saywood who brought to their relationship a child by a previous relationship, and who then gave birth to two further children of whom the husband was the father. Their relationship ended in the spring of 1991 and the parties to this appeal met in the summer of 1991. At some stage in that year, wardship proceedings commenced between the husband and Diane Saywood to determine the future care of the three children of the family that they had constituted.
The parties to this appeal married on 27th May 1992, and on the eve of the marriage they entered into what is generally known as a prenuptial agreement, namely an agreement intended to determine the consequences of any future divorce. The broad terms of this agreement were that, in the event of divorce, the husband would provide the wife with a home roughly equivalent to that which she occupied as a consequence of the settlement of ancillary relief proceedings between herself and her first husband. That was a property in Southborough. It was further agreed that the husband would pay the wife's reasonable household expenditure following the acquisition of such a future home.
It seems to me that that was a prenuptial agreement intended to fulfil the primary purpose of protecting the husband's fortune against wider claims, for the husband was a successful businessman who had developed a company called Aqualisa Products Limited. He had sold 18% of the equity for over £4 million in 1987, which had enabled him to purchase a splendid property called Orchard House, and also a property in Gran Canaria. So the wife, in marrying the husband, was marrying a man of significant fortune and of significantly greater fortune than that to which she had theretofore been accustomed.
Within the wardship proceedings, the primary judgment was given by Rattee J. in July 1992. He found solidly in favour of Diane and rejected the husband's case in terms which the husband found hard to accept. Continuing staying contact to the three children was conditional upon the wife being present throughout. That was the foundation of what developed into a very important relationship between the wife and the three children of Diane Saywood.
The husband was party to a sale of the Aqualisa company to a plc in the summer of 1992. At that stage, he had a substantial but not a majority shareholding, and the husband received shares in the plc. But there was a substantial cash injection into certain trusts which the husband had set up in the preceding month for his children. Two of those trusts are of particular relevance to this appeal, since under one of them the wife was included within the beneficial class and the other was specifically set up for the benefit of the wife's two children of her first marriage.
In 1994, seemingly to mark the husband's birthday, the wife entered into a further agreement at her suggestion, whereby she confirmed her limited rights in the event of the breakdown of the marriage. It seems that it was done as some sort of birthday gesture towards the husband and some sort of re-affirmation of the wife's commitment to the marriage and her confidence in its future. At about that time, the husband purchased a modest property in Sevenoaks for the wife in her name as her absolute property with funds entirely provided by him.
On 25th January 1995, Diane Saywood disappeared in the most dramatic circumstances, and the children who were within her care pursuant to the order of Rattee J. immediately passed into the care of the husband and wife. It was a period of the greatest drama and trauma, and all the evidence shows that the wife was exceptionally supportive of these bereft children who were not only without their mother but without any knowledge of her whereabouts.
The police inevitably investigated the disappearance and during the course of their investigation they discovered that the husband had, throughout the marriage, been conducting an adulterous association with another woman named June Baker. The police investigations came to the wife's knowledge. It seems she even saw the diaries of the other woman. She knew that there had been a previous relationship between her husband and this woman, but she had always accepted his assurances that it had ended prior to their marriage. This was inevitably a devastating discovery, and, as the judge subsequently found, it was a major contributor to the breakdown of the marriage.
It seems that by April 1996 the parties were estranged. In June a separate home was purchased for the wife in Tunbridge Wells. It cost £250,000, of which £77,000 came from the sale of the wife's house in Sevenoaks, £55,000 from the realisation of her share in the home that she had owned with her first husband and the remaining 50%, in round terms, came from the husband's independent funds.
The separation took place in the summer, seemingly with the wife's move to the house in Tunbridge Wells on 1st August. It was preceded by a separation agreement dated 26th July 1996. By its terms the parties reaffirmed the pre-existing prenuptial agreements and the husband quantified his obligation to pay continuing outgoings by accepting a figure of £20,000 per annum, index linked, to be payable to the wife for her life. Neither party took any legal advice on that accord, although the husband faxed the draft agreement to the solicitor who had acted for him throughout the wardship proceedings and whom he continued to regard as what might be called his family solicitor.
On 5th March 1997 the body of Diane Saywood was discovered, and that inevitably heightened the responsibility and the burden upon the wife in coping with her three children. The developments within the family were complex, but it seems that in broad terms Jennifer and particularly Sarah looked to the wife as their psychological mother, whereas Robert cleaved to the husband. An order was made in May 1997 committing the interim care of Robert to his father and the care and control of Sarah to the wife.
In March 1998 the wife petitioned for dissolution. It was a petition which she herself settled without the benefit of legal advice. She explained why the husband's conduct entitled her to a decree, and she said that she would make no claim for ancillary relief because "a written contract has already been signed and agreed by the Petitioner and Respondent."
At the end of June 1998, however, solicitors came onto the record for the wife. The petition was amended, amongst other things, to seek all forms of ancillary relief. It seems that that was a consequence of the husband's son-in-law, Mr. Fitzpatrick, having pleaded guilty to a charge of conspiracy to murder Diane Saywood. Seemingly he implicated the husband in the criminal conspiracy and for a time thereafter the husband's whereabouts were unknown and the wife's solicitors sought and obtained injunctive relief preventing the husband from disposing of his home. At about that time the wife made two statements to the police in response to their investigations, and almost immediately thereafter the husband was arrested and charged with the same count of conspiracy to murder.
It seems that the wife's co-operation with the police in their enquiries was regarded by the husband as extreme disloyalty, and it completely changed his feelings for the wife and his sense of financial responsibility for her future. The wife had had employment at a preparatory school that was substantially owned by the...
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