KA v MA (Prenuptial Agreement: Needs)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 13 March 2018 |
| Neutral Citation | [2018] EWHC 499 (Fam) |
| Court | Family Division |
| Docket Number | Case No: BV16D17074 |
| Date | 13 March 2018 |
[2018] EWHC 499 (Fam)
Mrs Justice Roberts
Case No: BV16D17074
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Martin Pointer QC and Nichola Gray (instructed by Boodle Hatfield) for the Applicant
Philip Marshall QC and Millicent Benson (instructed by Horsey Lightly) for the Respondent
Hearing dates: 22 nd to 25 th January 2018
Judgment Approved by the court for handing down
This is an application made by KA (to whom, for ease of reference, I shall refer as ‘the wife’) for financial remedy orders following the breakdown of her marriage to MA (‘the husband’). That application was made in June 2016 shortly after the commencement of divorce proceedings. It provoked, by way of response, a separate application by the husband in August that year in the form of a notice to show cause why an order should not be made within the financial remedy proceedings reflecting the terms of an agreement concluded by the parties some three weeks before the celebration of their marriage in December 2008. That prenuptial agreement is relied upon by the husband as an effective and binding legal arrangement which the court should now approve as a final resolution of any and all financial claims which remain extant in the context of the dissolution parties' marriage.
In terms of the outcome which each seeks, the parties are a long way apart. On behalf of the wife, Mr Pointer QC advances a needs-based claim of almost £6 million. If, as Mr Marshall QC contends on behalf of the husband, she is confined to the effective implementation of the terms of the agreement, she will receive a final award of just under £1.6 million. Both positions assume that there will be a financial clean break on payment of either one of those sums.
The background
The parties are now in their mid-fifties. The wife is 54 and the husband 55 years old. This was a second marriage for each of them. The wife had previously been married for some years although that marriage was childless. As a result of her first divorce, she retained a mortgaged property in Amersham which now has an agreed equity of some £245,615. The husband separated from his first wife in the summer of 2000 shortly before these parties met in July 2000. By all accounts those divorce proceedings were protracted and, from his perspective, bruising. That marriage had produced three sons who are now in their twenties. He told me that his experience of his first divorce had caused him to set his face against any thoughts of remarriage and that was to remain his position for the first few years of his relationship with the wife. He had retained his former matrimonial home, Property G, at the conclusion of his first marriage. His former wife received a sum of about £410,000 which he raised by increasing the mortgage on Property G. I was not made aware of any residual spousal maintenance obligations at the conclusion of those divorce proceedings although he continued to provide financially for his three elder sons.
At the time when these parties met, the husband was living in Property G, a substantial property near Reading which has an agreed value in these proceedings of £3.35 million. On any view he was a man of substantial wealth having developed a successful business in the field of international travel and tourism. The wife was working full-time locally in Buckinghamshire. She told me that, with bonus payments, she was earning about £40,000 gross per annum as a senior office manager by the time she left that job in 2004. She was then living in a property which she bought with her share of the sale proceeds from the former matrimonial home which she had shared with her first husband. She had little, if any, other capital resources at the time.
By the summer of 2004 the relationship had developed to the extent that, in July of that year, the wife moved to live permanently with the husband in Property G. His three elder sons (all aged under 10 years old at the time) were spending significant periods of time with their father in their old family home and it is accepted that the wife played a not insignificant role in looking after them during that period. It is clear to me from everything which I have heard and read in this case that she formed a close attachment to those children and was committed to sustaining her relationship with them throughout the years of her marriage to the husband. By the time she moved into Property G, she was heavily pregnant with M who was born in September 2004. As the child of both of these parties, I have been asked to consider the financial provision which should be made for him in future. Happily, there is broad consensus between these parents as to those arrangements to which I shall come in due course. For present purposes it is sufficient to note at this stage that the wife, with the husband's full agreement, gave up work after M's birth and has since devoted her time and energies to her role as wife, mother and homemaker. M is now 13 years old and will shortly leave his prep school to take up a place as a weekly boarder at a well know local public school. It is accepted that, thereafter, weekends and holidays will be shared on a broadly equal basis and he will spend significant periods of time in the homes of each of his parents. There is no doubt whatsoever that each is fully committed to M and I have no concerns about the financial arrangements which will be put in place for him as he moves through secondary into tertiary education.
It is accepted that the husband's pre-existing platform of wealth together with the fruits of his hard work throughout their cohabitation and subsequent marriage enabled this family to live a luxurious lifestyle. Whilst the husband told me that his financial situation improved from about 2009 onwards, there is no doubt that there were few, if any, effective brakes on their discretionary expenditure from that point onwards. The wife had moved into a very comfortable home set in 20 acres of land. The husband refers to Property G at various points in his evidence as “the G Estate”. Whatever the appropriateness of that description, it was, and is, a substantial country home. He has throughout this marriage employed various staff members to assist with its running, including a live-in housekeeper. He and the wife travelled extensively and took many short- and long-haul holidays together with M. Whilst there may have been some element of subsidy as a result of his business connections, I am satisfied that the husband's evidence that he spent about £250,000 per annum on holidays is broadly accurate. He was able to indulge his love of classic cars and retains three valuable Aston Martin vehicles, one of which was bought during the currency of the marriage. Both parties drove Range Rovers and still do. Indeed, there is no serious challenge by the husband to the wife's case that in the latter years of the marriage it cost approximately £1 million net per annum to sustain their family lifestyle. It is a lifestyle which the husband accepts he has continued to enjoy in the aftermath of their separation whilst financially supporting the wife at a significantly lower level.
Following M's birth in September 2004, the wife began to press the husband in relation to marriage. She says this in one of her witness statements:
“I made it clear to [him] from the outset of our relationship that I wanted to marry in the long term. He knew that I believed in marriage and that it was important to me particularly as I had given up my home, my job and my lifestyle to commit to him and to his three children, for whom I took on a lot of responsibility.”
In particular, she told him that, having taken the decision to have a child together, she was uncomfortable about the fact that their son would soon be starting nursery school and she and he did not share the same name. The husband, as I accept, had made it plain to her throughout their relationship that he did not wish to remarry having been through a difficult divorce. He reassured her that he was committed to his relationship with her but had resolutely set his face against any suggestion that they should marry. In order to address her concerns about names, he suggested that she could change her name by deed poll. Perhaps understandably, this course did not appeal to the wife. There is no issue but that, whenever the subject of marriage was discussed by this couple, the husband made it plain that he would not marry without a prenuptial agreement. The wife describes his position on the subject as consistent throughout. Indeed, she goes further and refers in her written evidence to the existence of “an understanding between us that [he] would insist on a pre-nuptial agreement”.
By the summer of 2008, after they had lived together for four years, it seems that the husband's position had softened slightly. Having set his face resolutely against any remarriage from the outset, he agreed he would marry the wife but only on the condition that she signed a prenuptial agreement. He described to me his recollection of a discussion between them in their bedroom in September of 2008 when he finally agreed that she should put in place arrangements for the wedding ceremony.
There was a good deal of evidence during the hearing about whether or not, by this stage, the parties were formally engaged to one another. I heard about two rings given to the wife by the husband, the first, in 2002, during a holiday to Thailand. She saw that gift as a clear indication of his commitment to her. In 2004, he had presented her with a diamond solitaire ring whilst they were on holiday in Barbados. It is her case that this gift was preceded by a formal proposal of marriage which she accepted. The...
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